
\ 



\ 



PRESENT DAY PROBLEMS 

A COLLECTION OF ADDRESSES 
DELIVERED ON VARIOUS 
OCCASIONS 

BY 

WILLIAM H. T AFT 



NEW YORK 
DODD, MEAD & COMPANY 
1908 



ET 7GI 

.T/6 

if congress 

I 

JUiM 25 1908 

Copyright, 1908, by 

William H. Taft 
Published, June, 1908 



THE QUINN ft BODEN CO. PRESS 
RAH WAY, N. J. 



CONTENTS 



PAGE 



Inaugural Address as Civil Governor of the 

Philippines ...... 1 

The Inauguration of the Philippine As- 
sembly . . . . .11 

China and Her Relations with the United 

States ...... 43 

Japan and Her Relations with the United 

States . . . . . .54 

An Appreciation of General Grant . . 60 
The Army of the United States ... 76 
The Panama Canal . . . . ..95 

A Republican Congress and Administration, 

and Their Work from 1904 to 1906 . 123 
The Legislative Policies of the Present 

Administration . . . . .155 

The Panic of 1907 206 

Southern Democracy and Republican Prin- 
ciples ...... 221 

Labor and Capital . . . . .241 

The Achievements of the Republican Party 273 
Recent Criticism of the Federal Judiciary 290 
Administration of Criminal Law . . . 333 



INAUGURAL ADDRESS AS CIVIL GOVERNOR 
OF THE PHILIPPINES 

MANILA, PHILIPPINE ISLANDS, JUL! 4, 1901 

My Fellow-countrymen : This ceremony marks a new- 
step toward civil government in the Philippine Islands. 
The ultimate and most important step, of course, will 
be taken by the Congress of the United States, but with 
the consent of the Congress the President is seeking to 
make the Islands ready for its action. However pro- 
visional the change made to-day, the President by fix- 
ing the natal day of the Republic as its date has mani- 
fested his view of its importance and his hope that the 
day so dear to Americans may perhaps be also asso- 
ciated in the minds of the Filipino people with good 
fortune. The transfer to the Commission of the legis- 
lative power and certain executive functions in civil 
affairs under the military government on September 
first of last year, and now the transfer of civil execu- 
tive power in the pacified provinces to a civil governor, 
are successive stages in a clearly formulated plan for 
making the territory of these Islands ripe for perma- | 
nent civil government on a more or less popular basis. / 
As a further step in the same direction, on September 
first next, at the beginning of the Commission's second 
legislative year, there will be added as members to that 
body by appointment of the President, Dr. Trinidad 
H. Pardo de Tavera, Senor Don Benito Legarda and 
Senor Don Jose Luzuriaga. The introduction into the 
legislature of representative Filipinos, educated and 
able, will materially assist the Commission in its work 
by their intimate knowledge of the people and of local 



2 



INAUGURAL ADDRESS AS 



prejudices and conditions. On September first, also, 
the executive branch of the insular government will be 
rendered more efficient by the establishment of four 
executive departments. There will be a department of 
the interior, of which Commissioner Dean C. Worcester 
will be head a department of commerce and police, of 
which Commissioner Luke E. Wright will be the head ; a 
department of justice and finance, of which Commis- 
sioner Henry C. Ide will be the head, and a department 
of public instruction, of which Commissioner Bernard 
Moses will be the head. The foregoing announcements 
are made by direction of the Secretary of War. 

Since the above was written, in confirmation of the 
statement of the President's purposes with respect to 
the people of these Islands, I have this morning re- 
ceived the following telegram from the President of the 
United States: 

Washington, July 3 — 3.45 p. m. 

Taft, Manila: 

Upon the assumption of your new duties as civil governor 
of the Philippine Islands I have great pleasure in sending 
congratulations to you and your associate commissioners 
and my thanks for the good work already accomplished. I 
extend to you my full confidence and best wishes for still 
greater success in the larger responsibilities now devolved 
upon you, and the assurance not only for myself but for my 
countrymen of good will for the people of the Islands, and 
the hope that their participation in the government which it 
is our purpose to develop among them, may lead to their 
highest advancement, happiness and prosperity. 

William McKinley. 

The extent of the work which the Commission has 
done in organizing civil governments in towns and 
provinces is considerable, but its scope and effect may 
easily be exaggerated by those not fully acquainted 



CIVIL GOVERNOR OF THE PHILIPPINES 3 



with the situation. Twenty-seven provinces have been 
organized under the general provincial act; but it has 
not been possible to fill the important office of super- 
visor in eight or nine of them because a supervisor must 
be a civil engineer. We have sent to America for com- 
petent persons, whose arrival we look for this month. As 
the supervisor is one of the three members of the govern- 
ing provincial board, his absence necessarily cripples 
the administration. Of the twenty -seven provinces or- 
ganized, four, possibly five and small parts of two 
others in which armed insurrection continues, will re- 
main under the executive jurisdiction of the military 
governor and commanding general. There are sixteen 
provinces or districts in which there is entire freedom 
from insurrection which the Commission has not had 
time to organize. Of the unorganized provinces and 
districts, including Mindoro and Paragua, the latter 
just occupied by the army, there are four that are not 
ready for civil government. In the organized provinces 
nearly all the towns have been organized under the muni- 
cipal code; and some towns have been similarly organ- 
ized in unorganized provinces. It was not supposed 
that either the municipal code or the provincial govern- 
ment act would form perfect governments, though it 
was possible to make the former much more complete 
than the latter, for there had been two experiments in 
municipal government under the administration of Gen- 
eral Otis and General Mc Arthur before the Commission 
began its legislative work. The provincial government 
act was tentative. The result of the southern trip of 
the Commission was a substantial amendment and there 
will doubtless be others. Government is a practical, 
not a theoretical, problem and the successful applica- 
tion of a new system to a people like this must be 



4 



INAUGURAL ADDRESS AS 



brought about by observing closely the operation of 
simple laws and making changes or additions as experi- 
ence shows their necessity. The enactment of the law 
in its first form and appointments under it are but one 
of several steps in a successful organization. 

The conditions under which the municipal and pro- 
vincial governments of the Islands are to have their first 
real test are trying. The four years' war has pauper- 
ized many, and its indirect effect in destroying the 
habits of industry of those who have been prevented 
from working in the fields, or who have been leading the 
irresponsible life of guerrillas, is even more disastrous. 
Not only war, but also the death from disease of a large 
percentage of the carabaos which are indispensable to 
the cultivation of rice and are greatly needed in all 
agriculture, has largely reduced the acreage of rice and 
other staple products. Then the pest of locusts has 
been very severe. In one province, and perhaps more, 
gaunt famine may have to be reckoned with. Poverty 
and suffering in a country where ladronism has always 
existed are sure to make ladrones. 

With the change made to-day, the civil governments 
must prepare to stand alone and not depend on the 
army to police the provinces and towns. The concen- 
tration of the army in larger garrisons where, in cases 
of emergency only, they can be called on to assist the 
local police may be expected; but the people must be 
enabled by organization of native police under proper 
and reliable Commanders to defend themselves against 
the turbulent and vicious of their own communities. 

The withdrawal of the army from the discharge of 
quasi-civil duties of police will be accompanied also by 
the ceasing of the jurisdiction of military commissions 
to try ordinary criminal cases. They have been most 



CIVIL GOVERNOR OF THE PHILIPPINES 5 



useful in punishing and repressing crime. We have en- 
acted a judiciary law and appointed judges under it who 
will succeed to this work. But the adoption of a new civil 
code of procedure, a new criminal code and code of pro- 
cedure, all of which are ready, may be delayed somewhat 
by the needed public discussion of them. Until they 
are all adopted, we shall not feel that the chief step has 
been taken toward securing the blessings of civil liberty 
to the people of the pacified provinces, the protection of 
life, liberty and property. 

The difficulties of official communication between 
provinces on the sea and between towns of the same 
province similarly situated must be met by a properly 
organized fleet of small steamers or launches which shall, 
at the same time, assist in the revenue or postal service. 
Provincial governments, in many cases, without such 
means of communicating with their numerous towns, are 
greatly impeded in their functions. 

Congress, in its wisdom, has delayed until its next 
session provision for the sale of public lands, of mining 
rights and the granting of franchises. All are neces- 
sary to give the country the benefit of American and 
foreign enterprise and the opportunity of lucrative 
labor to the people. Commercial railroads, street rail- 
roads, mortgage-loan companies or land banks and 
steamship companies only await Government sanction 
to spring into being. These may remedy the poverty 
and suffering that a patient people have now to bear. 

The school system is hardly begun as an organized 
machine. One thousand American teachers will arrive 
in the next three months. They must not only teach 
English in the schools, but they must teach the Filipino 
teachers. Schoolhouses are yet to be built ; schoolrooms 
are yet to be equipped. Our most satisfactory ground 



6 



INAUGURAL ADDRESS AS 



for hope of success in our whole work is in the eagerness 
with which the Philippine people, even the humblest, 
seek for education. 

Then there is another kind of education of adults to 
which we look with confidence. It is that which comes 
from observation of the methods by which Americans in 
office discharge their duties. Upon Americans who ac- 
cept office under the civil government is imposed the re- 
sponsibility of reaching the highest American standard 
of official duty. Whenever an American fails ; whenever 
he allows himself to use his official position for private 
ends, even though it does not involve actual defalcation 
or the stealing of public property or money, he is recre- 
ant to his trust in a far higher degree than he would be 
were he to commit the same offense in a similar office at 
home. Here he is the representative of the great Re- 
public among a people untutored in the methods of free 
and honest government, and in so far as he fails in his 
duty, he vindicates the objection of those who have 
forcibly resisted our taking control of these Islands 
and weakens the claim we make that we are here to 
secure good government for the Philippines. 

The operation of the civil-service Act and the rules 
adopted for its enforcement have been the subject of 
some criticism; but I think that when they are fully 
understood, and when the Filipino, in seeking a position 
in executive offices where English is the only language 
spoken, fits himself, as he will with his aptness for learn- 
ing languages, in English, he will have nothing to com- 
plain of either in the justice of the examination and its 
marking or in the equality of salaries between him and 
Americans doing the same work. The civil-service Act 
is the bulwark of honesty and efficiency in the govern- 
ment. It avoids the most marked evil of American 



CIVIL GOVERNOR OF THE PHILIPPINES 7 



politics, the spoils system. Without it success in 
solving our problem would be entirely impossible. Com- 
plaints of its severity and its unfortunate operation in 
individual instances may give plausibility to attack 
upon it, but those who are responsible for appointments 
can not be blinded to the fact that its preservation is 
absolutely essential to the welfare of these Islands. 

If I have understood the decision of the Supreme 
Court in the recent so-called Porto Rico cases, the ques- 
tion of what duties shall be levied on imports into these 
Islands from the United States and on exports from 
these Islands into the United States is committed to 
the discretion of Congress. Without assuming to ex- 
press an opinion on the much-mooted issue of constitu- 
tional law involved, I venture to say that the result 
is most beneficial to the people of these Islands. It 
seems to me that a decision that the same tariff was in 
force in these Islands as in the United States, and must 
always be so, would have been detrimental to the inter- 
ests of the Islands. They are 7,000 miles from the 
coast of the United States. The conditions prevailing 
in them are as different as possible from those in the 
United States. The application to them of a high pro- 
tective tariff carefully prepared to meet trade and the 
manufacturing conditions in the United States would 
have been a great hardship. It is true that to sugar 
and tobacco planters would have been opened a fine mar- 
ket, but it would have greatly reduced all trade between 
the Philippines and China and other Oriental countries 
and all European countries, and it would have neces- 
sitated a heavy internal tax to pay the expenses of the 
central government. Now the people may reasonably 
entertain the hope that Congress will give them a tariff 
here suited to the best development of business in the 



8 



INAUGURAL ADDRESS AS 



Islands, and may infer from the liberal treatment ac- 
corded in its legislation to Porto Rican products im- 
ported into the United States that Philippine products 
will have equally favorable consideration. 

The finances of the insular government are at present 
in a satisfactory condition, though changes in laws 
made or about to be made may affect them considerably. 
There is now in the insular treasury a sum of money 
exceeding $3,700,000 in gold unappropriated. The 
engineers in the Manila harbor work have been au- 
thorized to make contracts involving a liability of 
$2,000,000 beyond the $1,000,000 already appro- 
priated, but this is the only liability of the gov- 
ernment and it will not accrue for two years at 
least. The insular income, which is now about $10,- 
000,000, gold, a year, is likely to be reduced more than 
$1,000,000 by the provision of the provincial act which 
applies the proceeds of the internal-revenue taxes to the 
support of the provincial governments. Moreover, a 
new customs tariff is soon to be put in force, the imme- 
diate result of which may be to reduce the total amount 
of duties collected. It reduces the import tax on neces- 
sities and increases it on luxuries and roughly approxi- 
mates, as nearly as a tariff of specific duties can, to a 
purely revenue tariff of 25 per cent, ad valorem. In 
addition to this, the cost of the insular government is 
bound to increase as the establishment of peace and civil 
government is extended through the Archipelago and the 
skeleton bureaus and departments now recognized in the 
law are enlarged and given a normal usefulness. Still 
the increase of business due to returning peace and 
prosperity will doubtless keep pace with the needs of the 
government. 

The conduct of the civil and military branches of a 



CIVIL GOVERNOR OF THE PHILIPPINES 9 



military government under independent hands is neces- 
sarily a delicate matter. It depends, as the President 
in his instructions says, upon the fullest cooperation 
between the military and the civil arms, and I am glad 
to be able to say that I believe that there will be the same 
cooperation in the future as there has been in the past ; 
that the possible friction which may arise between the 
subordinates of the respective arms will have no encour- 
agement from those in whom is the ultimate responsi- 
bility. There is work enough and to spare for all who 
are concerned in the regeneration of these Islands. 

The burden of the responsibility which, by taking the 
oath this day administered to me, I assume, I shall not 
dwell upon, except to say that no one, I think, realizes 
it more keenly than I do. While I am profoundly 
grateful to the President of the United States for the 
personal trust he has expressed in appointing me to this 
high office, it is with no exultant spirit of confidence that 
I take up the new duties and new task assigned to me. 
I must rely, as I do, upon the cooperation, energy, 
ability and fidelity to their trust of those with whom 
I am to share the responsibility now to be presented, 
upon the sympathetic and patriotic patience of those 
educated Filipino people who have already rendered us 
such tremendous aid, and upon the consciousness that 
earnest effort and honest purpose, with a saving of 
common sense, have in the past solved problems as new, 
as threatening and as difficult as the one before us. 

The high and sacred obligation to give protection for 
property and life, civil and religious freedom and wise 
and unselfish guidance in the paths of peace and pros- 
perity to all the people of the Philippine Islands is 
charged upon us, his representatives, by the President 
of the United States. May we not be recreant to this 



10 INAUGURAL ADDRESS AS CIVIL GOVERNOR 



charge which, he truly says, concerns the honor and con- 
science of our country. He expresses the firm hope that 
through our " labors all the inhabitants of the Philip- 
pine Islands may come to look back with gratitude to 
the day when God gave victory to American arms at 
Manila and set their land under the sovereignty and 
protection of the people of the United States." God 
grant that in spite of all the trials and perplexities, the 
disappointments and difficulties, with which we are sure 
to be confronted, we may live to see this fervent hope 
made a living fact in the hearts of a patriotic people 
linked within the indissoluble ties of affection to our 
common and beloved country. 



THE INAUGURATION OF THE PHILIPPINE 

ASSEMBLY 

MANILA, PHILIPPINE ISLANDS, OCTOBER 16, 1907 

Gentlemen of the Assembly : President Roosevelt has 
sent me to convey to you and the Filipino people his 
congratulations upon another step in the enlargement 
of popular self-government in these Islands. I have 
the greatest personal pleasure in being the bearer of this 
message. It is intended for each and every member of 
the Assembly, no matter what his views upon the issues 
which were presented in the late electoral campaign. It 
assumes that he is loyal to the government in which he 
now proposes, under oath of allegiance, to take part. It 
does not assume that he may not have a wish to bring 
about, either soon or in the far future, by peaceable 
means, a transfer of sovereignty; but it does assume 
that while the present government endures, he will 
loyally do all he lawfully can to uphold its authority and 
to make it useful to the Filipino people. 

I am aware that, in view of the issues discussed at the 
election of this Assembly, I am expected to say some- 
thing regarding the policy of the United States to- 
ward these Islands. Before attempting any such task, 
it is well to make clear the fact that I can not speak 
with the authority of one who may control that policy. 

The Philippine Islands are territory belonging to the 
United States, and by the Constitution, the branch of 
that Government vested with the power, and charged 
with the duty, of making rules and regulations for their 
government is Congress. The policy to be pursued with 
respect to them is, therefore, ultimately for Congress to 

11 



12 



THE INAUGURATION OF 



determine. Of course, in the act establishing a govern- 
ment for the Philippine Islands passed by Congress July 
1, 1902, wide discretion has been vested in the Presi- 
dent to shape affairs in the Islands, within the limita- 
tions of the act, through the appointment of the Gov- 
ernor and the Commission, and the power of the Secre- 
tary of War to supervise their work and to veto proposed 
legislation; but not only is the transfer of sovereignty 
to an independent government of the Filipino people 
wholly within the jurisdiction of Congress, but so also 
is the extension of any popular political control in the 
present government beyond that conferred in the or- 
ganic act. It is embarrassing, therefore, for me, though 
I am charged with direct supervision of the Islands un- 
der the President, to deal in any way with issues relating 
to their ultimate disposition. It is true that the peculiar 
development of the government of the Islands under 
American sovereignty has given to the attitude of the 
President upon such issues rather more significance than 
in most matters of exclusively Congressional cognizance. 
After the exchange of ratifications of the treaty of 
Paris in April of 1899, and until the organic act of 
July 1, 1902, Congress acquiesced in the government of 
the Islands by the President as Commander in Chief of 
the Army and Navy without interference, and when it 
passed the organic act it not only confirmed in every 
respect the anomalous quasi-civil government which he 
had created, but it also made his instructions to the 
Secretary of War part of its statute, and followed 
therein his recommendation as to future extensions of 
popular political control. This close adherence of Con- 
gress to the views of the Executive in respect to the 
Islands in the past gives ground for ascribing to Con- 
gress approval of the Philippine policy, as often de- 



THE PHILIPPINE ASSEMBLY IS 

clared by President McKinley and President Roosevelt. 
Still, I have no authority to speak for Congress in re- 
spect to the ultimate disposition of the Islands. I can 
only express an opinion as one familiar with the circum- 
stances likely to affect Congress, in the light of its 
previous statutory action. 

The avowed policy of the National Administration 
under these two Presidents has been and is to govern the 
Islands, having regard to the interest and welfare of the 
Filipino people, and by the spread of general primary 
and industrial education and by practice in partial 
political control to fit the people themselves to maintain 
a stable and well-ordered government affording equality 
of right and opportunity to all citizens. The policy 
looks to the improvement of the people both industrially 
and in self-governing capacity. As this policy of ex- 
tending control continues, it must logically reduce and 
finally end the sovereignty of the United States in the 
Islands, unless it shall seem wise to the American and 
the Filipino peoples, on account of mutually beneficial 
trade relations and possible advantage to the Islands 
in their foreign relations, that the bond shall not be 
completely severed. 

How long this process of political preparation of the 
Filipino people is likely to be is a question which no one 
can certainly answer. When I was in the Islands the 
last time, I ventured the opinion that it would take con- 
siderably longer than a generation. I have not changed 
my view upon this point ; but the issue is one upon which 
opinions differ. However this may be, I believe that the 
policy of the Administration as outlined above is as 
definite as the policy of any government in a matter of 
this kind can safely be made. We are engaged in work- 
ing out a great experiment. No other nation has at- 



14 



THE INAUGURATION OF 



tempted it, and for us to fix a certain number of years 
in which the experiment must become a success and be 
completely realized would be, in my judgment, unwise. 
As I premised, however, this is a question for settlement 
by the Congress of the United States. 

Our Philippine policy has been subjected to the sever- 
est condemnation by critics who occupy points of view as 
widely apart as the two poles. There are those who 
say that we have gone too fast, that we have counted 
on the capacity of the Filipino for political development 
with a foolish confidence leading to what they regard as 
the disastrous result of this election. There are others 
who assert that we have denied the Filipino that which is 
every man's birthright — to govern himself — and have 
been guilty of tyranny and a violation of American prin- 
ciples in not turning the government over to the people 
of the Islands at once. 

With your permission, I propose to consider our 
policy in the light of the events of the six years during 
which it has been pursued, to array the difficulties of 
the situation which we have had to meet and to mention 
in some detail what has been accomplished. 

The Civil Government was inaugurated in 1901 before 
the close of a war between the forces of the United States 
and the controlling elements of the Philippine people. It 
had sufficient popular support to overawe many of those 
whose disposition was friendly to the Americans. In 
various provinces the war was continued intermittently 
for a year after the appointment of a Civil Governor 
in July, 1901. This was not an auspicious beginning 
for the organization of a people into a peaceful com- 
munity acknowledging allegiance to an alien power. 

Secondly, there was, in the United States, a strong 
minority party that lost no opportunity to denounce the 



THE PHILIPPINE ASSEMBLY 15 



policy of the Government and to express sympathy with 
those arrayed in arms against it, and declared in party 
platform and in other ways its intention, should it come 
into power, to turn the Islands over to an independent 
government of their people. This not only prolonged 
the war, but when peace finally came, it encouraged a 
sullenness on the part of many Filipinos and a lack of 
interest in the progress and development of the existing 
government, that were discouraging. It offered the 
hope of immediate independence at the coming of every 
national election by the defeat of the Administration at 
the polls. This was not of assistance in carrying out a 
policy that depended for its working on the political edu- 
cation of the people by their cordial participation, first, 
in the new municipal and provincial governments, and 
finally in the election of a National Assembly. The re- 
sult has been that during the educational process there 
has been a continuing controversy as to the political 
capacity of the Filipino people. It has naturally been 
easy to induce a majority of the electorate to believe that 
they are now capable of maintaining a stable govern- 
ment. All this has tended to divert the people's atten- 
tion from the existing government, although their use- 
ful participation in that must measure their progress 
toward fitness for complete autonomy. 

The impatience of the popular majority for further 
power may be somewhat mitigated as the extent of the 
political control which is placed in the hands of the 
people increases, and as they become more familiar with 
the responsibilities and the difficulties of actual power. 
The difference between the attitude of an irresponsible 
critic who has behind him the easily aroused prejudices 
of a people against an alien government, and that of one 
who attempts to formulate legislation which shall accom- 



16 



THE INAUGURATION OF 



plish a definite purpose for the good of his own people, 
is a healthful lesson for the ambitious statesman to learn. 

Other formidable political obstacles had to be over- 
come. There still remained present in the situation in 
1901 the smoldering ashes of the issues which had led 
the people to rebel against the power of Spain — I mean 
the prospective continuance of the influence of the regu- 
lar religious orders in the parochial administration of 
the Roman Catholic Church in the Islands and their 
ownership of most valuable and extensive agricultural 
lands in the most populous provinces. The change of 
sovereignty to a Government which could exercise no 
control over the Church in its selection of its agents 
made the new regime powerless, by act or decree, to pre- 
vent the return of the friars to the parishes, and yet 
the people were disposed to hold the Government re- 
sponsible whenever this was proposed. It would have 
been fraught with great danger of political disturbance. 
It was also essential that the religious orders should 
cease to be agricultural landlords in order to eliminate 
the agrarian question arising between them and sixty 
thousand tenants which had played so large a part 
in the previous insurrections against Spain. These re- 
sults were to be attained without offending, or infring- 
ing upon the rights of, the Roman Catholic Church, the 
influence of which for good in the Islands could not be 
denied. Other political difficulties attending the trans- 
fer of a sovereignty from a Government in which the 
interests of the State and the Church were inextricably 
united to one in which they must be absolutely separated, 
I need not stop to elaborate. The religious and property 
controversies arising out of the Aglipayan schism, and 
the disturbances caused, added much to the burden of 
the Government. 



THE PHILIPPINE ASSEMBLY 17 



The novelty of the task for the United States and 
her people, the lack of the existence of a trained body 
of colonial administrators and civil servants, the depend- 
ence for a time upon men as government agents who 
had come out in a spirit of adventure to the Islands and 
some of whom proved not to be fitted either by character 
or experience for the discharge of responsible public 
duties, gave additional cause for discouragement. 

Another great difficulty in working out our policy in 
these Islands has been the reluctance of capitalists to 
invest money here. Political privileges, if unaccom- 
panied by opportunities to better their condition, are 
not likely to produce permanent contentment among a 
people. Hence the political importance of developing 
the resources of these Islands for the benefit of its in- 
habitants. This can only be done by attracting capital. 
Capital must have the prospect of security in the invest- 
ment and a certain return of profit before it will become 
available. The constant agitation for independence in 
the Islands, apparently supported by the minority party 
in the United States, and the well-founded fear that 
an independent Philippine government now established 
would not be permanent and stable have made capitalists 
chary of attempting to develop the natural resources of 
the Islands. The capital which has come has only come 
reluctantly and on terms less favorable to the public 
than would have been exacted under other conditions. 

Another difficulty of the same character as the last 
in preventing material progress has been the failure 
of Congress to open the markets of the United States 
to the free admission of Philippine sugar and tobacco. 
In every other way Congress has shown its entire and 
generous sympathy with the policy of the Administra- 
tion; and in this matter the popular branch of that 



18 THE INAUGURATION OF 



body passed the requisite bill for the purpose by a large 
majority. Certain tobacco and sugar interests of the 
United States, however, succeeded in strangling the 
measure in the Senate committee. I have good reason 
for hope that in the next Congress we may be able to 
secure a compromise measure which shall restore the 
sugar and tobacco agriculture of the Islands to its 
former prosperity, and at the same time by limitations 
upon the amounts of importation allay the fears of in- 
jury on the part of the opponents of the measure. Still, 
the delay in this much-needed relief has greatly retarded 
the coming of prosperous times and has much dis- 
couraged supporters of our policy in America who have 
thought this indicated a lack of national purpose to 
make the present altruistic policy a success. 

But the one thing that interfered with material prog- 
ress in the Islands, more than all other causes put to- 
gether, was the rinderpest which carried away from 
75 to 80 per cent, of the cattle that were absolutely in- 
dispensable in cultivating, reaping and disposing of 
the agricultural products upon which the Islands are 
wholly dependent. The extent of this terrible disaster 
can not be exaggerated and the Islands have not yet 
recovered from it. Attempts to remedy the evil by the 
importation of cattle from other countries have proved 
futile, and the Islands can not be made whole in this re- 
spect except by the natural reproduction of the small 
fraction of the animals that escaped destruction. This 
is not a matter of a year, or of two years or of three 
years, but a matter of a decade. Then, too, there were 
in these years surra, locusts, drought, destructive ty- 
phoons, cholera, bubonic plague and smallpox, ladron- 
ism and pulajanism. The long period of disturbance, of 
guerrilla warfare and unrest, which interfered for years 



THE PHILIPPINE ASSEMBLY 19 

witii the carrying on of the peaceful arts of agriculture 
and made it so easy for those who had been used to 
work in the fields to assume the wild and loose life of 
predatory bands claiming to be liberating armies, all 
made a burden for the community that it was almost 
impossible for it to bear. 

When I consider all these difficulties, which I have 
rehearsed at too great length, and then take account of 
the present conditions in the Islands, it seems to me that 
they present an occasion for profound satisfaction and 
that they fully vindicate the policy which has been 
pursued. 

How have we met the difficulties? In the first place, 
we have carried out with entire fidelity the promises of 
Presidents McKinley and Roosevelt in respect to the 
gradual extension of political control in the Government 
as the people should show themselves fit. In 1901 the 
Commission adopted the Municipal Code, which vested 
complete autonomy in the adult male citizens of every 
municipality in the Islands, except that of Manila, 
which for special reasons, like those which have pre- 
vailed with respect to the government of the city of 
Washington, was preserved for control by the Central 
Government. The electorate was limited to those who 
could speak English or Spanish, or who paid a tax of 
P15 a year, or who had filled municipal office under the 
Spanish regime, and did not exceed 20 per cent, of the 
total adult males of the population. Very shortly after 
this a form of provincial government was established in 
which the legislative and executive control of the prov- 
ince was largely vested in a provincial board consisting 
of a governor and treasurer and supervisor. Provision 
was made for the election of a governor and the 
appointment under civil-service rules of a treasurer 




20 



THE INAUGURATION OF 



and supervisor. Subsequently it was found that the 
government was too expensive and the office of super- 
visor was finally abolished, and after some four years 
the board was made to consist of a governor and treas- 
urer, and a third member elected as the governor was, 
thus effecting popular autonomy in the provincial gov- 
ernments. And now comes the Assembly. 

It is said by one set of critics, to whom I have al- 
ready referred, that the franchise is the last privilege 
that ought to be granted in the development of a people 
into a self-governing community, and that we have put 
this into the hands of the Filipinos before they have 
shown themselves to be industrially and in other ways 
capable of exercising the self-restraint and conservatism 
of action which are essential to political stability. I can 
not agree with this view. The best political education is 
practice in the exercise of political power, unless the 
subject is so ignorant as to be wholly blind to his own 
interests. Hence the exercise of a franchise which is 
conferred only on those who have qualifications of edu- 
cation or property that prove intelligence and substance, 
is likely to teach the electorate useful political lessons. 
The electorate under the Philippine law are sufficiently 
alive to their own interests to make the exercise of politi- 
cal power a useful training for them, while the power 
to be exercised is subject to such limitation as not to 
be dangerous to the community. More than this, the 
granting of the franchise was most useful in producing 
tranquillity among the people. The policy has been vin- 
dicated by the fact. 

The importance of the agency of the Army of the 
United States in suppressing insurrection I would not 
minimize in the least; but all who remember clearly the 
succession of events from 1901 to 1903 will admit that 



THE PHILIPPINE ASSEMBLY 21 



the return to peace and the acquiescence of the Fili- 
pino people in American sovereignty were greatly influ- 
enced and aided by the prospect held out to the Filipinos 
of participation in the government of the Islands and a 
gradual extension of popular self-control. Without this 
and the confidence of the Filipino people in the good 
purposes of the United States and the patience with 
which they endured their many burdens that fate seemed 
to increase, the progress which has been achieved would 
have been impossible. 

Let us consider in some detail what progress has been 
made : 

First. To repeat what I have said, the Islands are in 
a state of tranquillity. On this very day of the open- 
ing of the National Assembly, there has never been a time 
in the history of the Islands when peace and good order 
have prevailed more generally. The difficulties pre- 
sented by the controversies arising with and concerning 
the Roman Catholic Church have either been completely 
settled or are in process of satisfactory adjustment on a 
basis of justice and equity. 

Second. Most noteworthy progress has been made in 
the spread of general education. One of the obstacles 
to the development of this people speaking half a dozen 
or more different native dialects was a lack of a common 
language, which would furnish a medium of sympathetic 
touch with modern thought and civilization. The 
dense ignorance of a very large proportion of the people 
emphasized the necessity for a general educational sys- 
tem. English was the language of the sovereign power, 
English was the business language of the Orient, Eng- 
lish was the language in which was thought and written 
the history of free institutions and popular government, 
and English was the language to which the common 



THE INAUGURATION OF 



people turned with eagerness to learn. A system of 
education was built up, and to-day upward of half a 
million children are being taught to read, write and 
recite English. It is not an exaggeration to assert that 
now more native Filipinos speak English than Spanish, 
although Spanish was the language of the ruling race 
in these Islands for more than two hundred and fifty 
years. English is not so beautiful as the Spanish lan- 
guage, but it is more likely to prove of use to the 
Filipinos for the reasons I have given. The strongest 
basis for our confidence in the future of the Filipino 
people is the eagerness with which the opportunities ex- 
tended for education in English have been seized by the 
poor and ignorant parents of these Islands for their 
children. It is alike pathetic and encouraging. 

I am not one of those who believe that much of the 
public money should be expended here for university or 
advanced education. Perhaps one institution merely to 
form a type of higher education may be established at 
Manila or at some other suitable place in the Islands, 
and special schools to develop needed scientific profes- 
sions may be useful, but the great part of the public 
funds expended for education should be used in the 
spread of primary education and of industrial educa- 
tion — that education which shall fit young men to be 
good farmers, good mechanics, good skilled laborers, 
and shall teach them the dignity of labor and that it is 
no disgrace for the son of a good family to leam his 
trade and earn his livelihood by it. The higher educa- 
tion is well for those who can use it to advantage, but 
it too often fits a man to do things for which there is 
no demand, and unfits him for work which there are too 
few to do. The enlargement of opportunity for higher 
education may well await private beneficence or be post- 



THE PHILIPPINE ASSEMBLY 28 



poned to a period when the calls upon the Island 
Treasury for other more important improvements have 
ceased. We have laid the foundation of a primary and 
industrial educational system here which, if the same 
spirit continues in the Government, will prove to be the 
most lasting benefit which has been conferred on these 
Islands by Americans. 

Third. We have introduced here a health depart- 
ment which is gradually teaching the people the neces- 
sity for sanitation. In the years to come, when the 
great discoveries of the world are recited, that which 
will appear to have played as large a part as any 
in the world's progress in the current hundred years 
will be the discovery of proper sanitary methods for 
avoiding disease in the Tropics. The introduction of 
such methods, the gradual teaching of the people the 
simple facts affecting hygiene, unpopular and difficult 
as the process of education has been, will prove to be 
another one of the great benefits given by Americans to 
this people. 

The efforts of the Government have not been confined 
to preserving the health of the human inhabitants of 
these Islands, but have been properly extended to doing 
what can be done in the matter of the health of the 
domestic animals which is so indispensable to the mate- 
rial progress of the Islands. The destruction by rinder- 
pest, by surra, and by other diseases to which cattle 
and horses are subject, I have already dwelt upon. 
Most earnest attention has been given by men of the 
highest scientific attainment to securing some remedy 
which will make such widespread disasters in the future 
impossible. Much time and effort and money have been 
spent and much has been accomplished in this matter. 
The people are being educated in the necessity for care 



24 THE INAUGURATION OF 



of their cattle and for inviting in public aid at once 
when the dread rinderpest shows its presence. Serums 
have been discovered that have been effective to immunize 
cattle, and while the disease has not disappeared, it is not 
too much to say that such an epidemic as that which 
visited the Islands in 1900, 1901 and 1902 is impossible. 

Fourth. A judicial system has been established in the 
Islands which has taught the Filipinos the possibility of 
the independence of a judiciary. This must be of en- 
during good to the people of the Islands. The personnel 
of the judges is divided between Americans and Fili- 
pinos, both for the purpose of aiding the Americans to 
learn and administer civil law and of enabling the Fili- 
pinos to learn and administer justice according to a 
system prevailing in a country where the judiciary is ab- 
solutely independent of the executive or legislative 
branches of the Government. Charges have been made 
that individual judges and particular courts have not 
been free from executive control and have not been 
without prejudices arising from the race of the particu- 
lar judge who sat in the court, but on the whole an im- 
partial review of the six years' history of the adminis- 
tration of justice will show that the system has been 
productive of the greatest good and that right has been 
sustained without fear or favor. It is entirely natural 
that a system which departs from the principles of that 
in which one has been educated should at times attract 
his severe animadversion, and as the system here admin- 
istered partakes of two systems, it is subject to the 
criticism of those trained in each. 

Another agency in the administration of justice has 
been the Constabulary. When I was here something 
more than two years ago, the complaints against that 
body were numerous, emphatic and bitter. I promised, 



THE PHILIPPINE ASSEMBLY 25 

on behalf of the Philippine government and the Wash- 
ington Administration, that close investigation should 
be made into the complaints and that if there was oc- 
casion for reform, that reform would be carried out. 
It gratifies me on my return to the Islands now to 
learn that a change has come, that the complaints 
against the Constabulary have entirely ceased, and that 
it is now conceded to be discharging with efficiency the 
function which it was chiefly created to perform, of 
sympathetically aiding the provincial governors and 
municipal authorities of the Islands in maintaining the 
peace of each province and each municipality, and that 
there is a thorough spirit of cooperation between the 
officers and men of the Constabulary and the local au- 
thorities. 

In respect to the administration of justice by justices 
of the peace, reforms have been effected, but I am not 
sure that there is not still great room for improvement. 
This is one of the things that come home close to the 
people of the country and is a subject that will doubt- 
less address itself to the wise action and consideration of 
the National Assembly. 

Fifth. We come to the matter of public improve- 
ments. The port of Manila has been made into a harbor 
which is now as secure as any in the Orient, and which, 
with the docking facilities that are now being rapidly 
constructed, will be as convenient and as free from 
charge and burden as any along the Asiatic coast. The 
improvements in Iloilo and Cebu harbors, the other two 
important ports of the Islands, are also rapidly pro- 
gressing. Road building has proceeded in the Islands, 
both at the instance of the Central Government and 
through the agency of the provinces. The difficulties of 
road building and road maintaining in the Philippines 



26 



THE INAUGURATION OF 



are little understood by those not familiar with the diffi- 
culty of securing proper material to resist the enormous 
wear and tear caused by the torrential downpours of the 
rainy season. Progress in this direction must neces- 
sarily be gradual, for the Islands are a poor country, 
comparatively speaking, and roads are expensive. 

Early in the history of the Islands we began the con- 
struction of a road from Pangasinan to the mountains 
of Benguet in order to bring- within the reach of the 
people of the Islands that healthful region where the 
thermometer varies from 40 to 80 degrees, and in which 
all the diseases of the Tropics are much more easily 
subject to cure than in the lowlands. Had it been 
supposed that the road thus to be constructed would in- 
volve an expense of nearly two millions of dollars, the 
work would not have been begun, but, now that the road 
has been constructed, I would not undo what has been 
done even if it were possible. As time progresses, the 
whole Province of Benguet will be settled: there will be 
made the home of many educational institutions, of 
many sanitariums, and there will go, as transportation 
becomes cheaper, the Filipino people to obtain a change 
of air and acquire a renewed strength that is given to 
tropical peoples by a visit to the temperate zone. 

When the Americans came to the Islands there was one 
railroad 120 miles long, and that was all. In spite of 
circumstances, which I have already detailed, making 
capital reluctant to come here, contracts have now been 
entered into, that are in the course of fulfillment, which 
in five years will give to the Islands a railroad mileage 
of 1,000 miles. The construction of these roads will 
involve the investment of twenty to thirty millions 
of dollars, and that in itself means an added prosperity 
to the country, additional demands for labor, and the 



THE PHILIPPINE ASSEMBLY 27 



quickening of all the nerves of trade. When the work 
is finished, it means a great additional profit to agricul- 
ture, a very great enlargement of the export capacity 
of the Islands, and a substantial elevation of the material 
condition of the people. 

In the matter of municipal improvements, which di- 
rectly concern the people, that which has taken place 
in Manila is most prominent. The improvement of the 
streets, the introduction of a satisfactory street rail- 
way system 35 miles in length, the improvement of the 
general appearance of the city and its hygienic con- 
dition, the construction of new waterworks and a new 
sewage system, all strike one who knew the city in 1900. 
The improvements of other municipalities in the Islands 
have not kept pace with those in Manila, and of course 
they were not so imperatively needed ; but the epidemics 
of cholera and plague and smallpox which have pre- 
vailed have convinced those in authority of the neces- 
sity of bettering the water supply of all municipalities 
and for improving this by the sinking of artesian wells 
and other means, so that bad water, that frightful 
source of the transmission of disease, should be reduced 
to a minimum. 

The government now maintains and operates a more 
complete system of posts, telephones and telegraphs 
than ever before in the history of the Islands. Seventy- 
five per cent, of the 652 municipalities now established in 
these Islands have post-offices, in 235 of which there 
are now opened for business postal savings banks. The 
telegraph or telephone now connects all of the provincial 
capitals with Manila and more than 90 offices are now 
open for business. Appropriation has been made to 
provide for a system of rural free delivery. In less 
than one year of operation the Postal Savings Bank has 



28 THE INAUGURATION OF 

deposits exceeding "F" 600,000, and the number of Fili- 
pino depositors now exceeds 1,000, and the proportion 
of their deposits is steadily increasing. 

Sixth. We have inaugurated a civil service law for 
the selection of civil servants upon the merit system. On 
the whole it has worked well. It has grown with our 
experience and has improved with the disclosure of its 
defects. 

One of the burning questions which constantly pre- 
sents itself in respect to the civil service of a Government 
like this is, how far it shall be American and how far 
Filipino. In the outset it was essential that most of 
the civil servants of the government should be Ameri- 
cans. The government was English speaking, and the 
practical difficulty of having subordinates who did not 
speak that language prevented large employment of 
Filipinos. Then their lack of knowledge of Ameri- 
can governmental and business methods had the same 
tendency. The avowed policy of the government has 
been to employ Filipinos wherever, as between them and 
Americans, the Filipinos can do equally good work. 
This has given rise to frequent and bitter criticism, be- 
cause it has been improperly assumed that every time 
there has been a vacancy, it could be filled by a 
Filipino. There are two great advantages in the em- 
ployment of Filipinos — one is that this is the govern- 
ment of the Filipinos and they ought to be employed 
where they can be, and the other is that their employ- 
ment is a matter of economy for the government, because 
they are able to live more cheaply and economically in 
the Islands than Americans and so can afford to receive 
less salary. There has therefore been a constant reduc- 
tion of American employees and an increase of Filipinos. 
This has not been without its disadvantage because it 



THE PHILIPPINE ASSEMBLY 29 



makes competent American employees feel an uncer- 
tainty of tenure, and materially affects their hope of 
promotion and their interest in the government of which 
they are a part. This disadvantage I believe can be 
largely obviated. 

There are many American civil servants in this gov- 
ernment who have rendered most loyal, difficult and effi- 
cient service, in season and out of season, through 
plague and epidemic, in sickness and in health, in full 
sympathy with the purposes and policy of the govern- 
ment. Without them our government would have been 
a complete failure. They will never receive adequate 
reward. Their interest in their work has prevented their 
return to their native land, where the same energy and 
efficiency would have earned them large return. They 
are most valuable public servants who have done a work 
that, had they done it in the English colonial service 
or at home, would have been certain to secure to them a 
permanent salary and entire freedom from anxiety as to 
the future. I would be glad to see adopted a system of 
permanent tenure and retirement on pensions for the 
small and higher classes of civil employees. Their con- 
tinuance in the government indefinitely is a public neces- 
sity. I sincerely hope the Philippine Assembly will ex- 
hibit its spirit of justice and public interest to the point 
of concurring in such a measure even though this, at 
present, will be of benefit to more Americans than 
Filipinos. 

Seventh. In the progress which has been made, I 
should mention the land system, the provision for home- 
stead settlement, for free patents, and for perfecting of 
imperfect titles by land registration. The homestead 
settlements under the law were very few for several 
years, but I am delighted to learn that during 1907 



30 



THE INAUGURATION OF 



they reached 4,000 and the free patents applied for 
were 10,600. It is probable that the machinery for land 
registration, though necessary, is too expensive, and it 
will be for you to decide whether, in view of the great 
public benefit that good land titles will bring to the 
country, it may not be wise to reduce the cost of regis- 
tration to the landowner and charge the expense to the 
government. Capital will not be advanced to the farmer 
unless his title is good, and the great benefit of an agri- 
cultural bank can never be realized until the registration 
of titles is greatly increased. 

This naturally brings me to the subject of the Agri- 
cultural Bank. After much effort Congress was in- 
duced to pass an act which authorizes the Philippine 
Government to invite the organization of such a bank 
with private capital by guaranteeing an annual income 
of a certain percentage on the capital invested for thirty 
years. Negotiations have been opened and are pending 
with some American capitalists in the hope of securing 
the establishment of such a bank. 

The condition of agriculture in the Islands, while gen- 
erally much improved in the last three years, is still un- 
satisfactory in many parts of the Islands, due not only 
to the continued scarcity of cattle but also to the de- 
structive effect of the typhoon of 1905 upon the hemp 
culture. This has properly led to the suspension of the 
land tax for another year and the meeting of half the 
deficit in provincial and municipal treasuries thus pro- 
duced, out of the central treasury. 

The production of rice has, however, materially in- 
creased. It is also a source of satisfaction to note that 
the exports from the Islands, which are wholly agricul- 
tural, are larger in value by half a million gold dollars 
than ever in the history of the Islands. One of the chief 



THE PHILIPPINE ASSEMBLY 31 



duties of this Assembly is to devote its attention and 
practical knowledge to measures for the relief of agri- 
culture. 

Eighth. The financial condition of the Philippine 
government is quite satisfactory, and so, too, is the state 
of the money and currency of the Islands. There is a 
bonded indebtedness for the purchase of the friar lands > 
amounting to $7,000,000, for the waterworks and sew- 
age of Manila of $3,000,000, and for public works 
amounting to $3,500,000. Sinking funds have been es- 
tablished for all of these. The price paid for the friar 
lands was a round one and may result, after the lands 
are disposed of, in some net pecuniary loss to the 
Government, but the political benefit of the purchase was 
a full justification. The lands will be disposed of to the 
tenants as rapidly as the public interest will permit. 
The only other permanent obligation of the government 
is the contingent liability on the guaranty of interest for 
thirty years on the bonds issued to construct 300 miles 
of railroad in the Visayas. We may reasonably hope 
that this obligation will soon reduce itself to nothing 
when the roads come into successful operation. The 
Governor-General reports to me that the budget for 
1908 will show an income and surplus from last year, 
without any land tax, from which it will be possible 
to pay all the interest on the bonds and guaranties, all 
the insular expenses, the proper part of the expenses of 
Manila, $2,000,000 in permanent improvements, and 
still have on hand for contingencies $1,000,000. 
I am further advised that the condition of most of 
the provinces is excellent in respect to income and 
surplus. 

It has been necessary to reduce the silver in the 
Philippine peso to keep its intrinsic value within the 



32 



THE INAUGURATION OF 



value of 50 cents, gold, at which it is the duty of the 
government to maintain it, and this change is being 
rapidly carried through without much difficulty. The 
benefit to the people, and especially the poorer and 
working classes, in the establishment of the gold stand- 
ard is very great. It eliminates a gambling feature 
from the business of the Islands that always worked for 
the detriment of the Philippine people. We are just 
carrying through a settlement with the Spanish-Filipino 
Bank which I hope will provide a means of safely add- 
ing to the currency of the country and increasing its 
elasticity. 

In recounting these various evidences of progress in 
the last six years, I am not unmindful that the business 
of the Islands is still far from prosperous. Indeed, it 
is noteworthy that so much progress has been made in 
the face of continued business depression due to the 
various causes I have elsewhere enumerated ; but it is a 
long lane that has no turning and I look forward to the 
next decade in the history of the Islands as one which 
will be as prosperous as this one has been the reverse. 
Business is reviving, the investment of foreign capi- 
tal is gradually increasing and only one thing is needed 
to insure great material improvement, and that is the 
continuance of conservatism in this Government. I feel 
confident that the inauguration of this Assembly, in- 
stead of ending this conservatism as the prophets of evil 
would have it, will strengthen it. 

Before discussing the Assembly, I wish to give atten- 
tion to one report that has been spread to the four 
corners of the globe, and which, if credited, might have 
a pernicious effect in these Islands. I refer to the state- 
ment that the American Government is about to sell the 
Islands to some Asiatic or European power. Those who 



THE PHILIPPINE ASSEMBLY SS 



credit such a report little understand the motives which 
actuated the American people in accepting the burden Is' 
of this Government. | The majority of the American 
people are still in favor of carrying out our Philippine 
policy as a great altruistic work. They have no selfish 
object to secure. There might be a grim and temporary 
satisfaction to those of us who have been subjected to 
severe criticism for our alleged lack of liber ah ty toward 
the Filipino people and of sympathy with their aspira- 
tions, in witnessing the rigid governmental control which 
would be exercised over the people of the Islands under 
the colonial policy of any one of the powers to whom it 
is suggested that we are about to sell them; but that 
would not excuse or justify the gross violation, by such 
a sale, of the implied obligation which we have entered 
into with the Filipino people. That obligation presents 
only two alternatives for us — one is a permanent main- 
tenance of a popular government of law and order under 
American control, and the other, a parting with such 
control to the people of the Islands themselves after they 
have become fitted to maintain a government in which 
the right of all the inhabitants to life, liberty and 
property shall be secure. I do not hesitate to pro- 
nounce the report that the Government contemplates 
the transfer of these Islands to any foreign power as 
utterly without foundation, j It has never entered the 
mind of a single person in the Government responsible 
for the Administration. Such a sale must be the sub- 
ject of a treaty, and the treaty power in the Govern- 
ment of the United States is exercised by the President 
and the Senate, and only upon the initiative of the 
President. Hence an Executive declaration upon this 
subject is more authoritative than an Executive opinion 
as to probable Congressional action. 



34 



THE INAUGURATION OF 



Coming now to the real occasion of this celebration, 
the installation of the National Assembly, I wish, for 
purposes of clearness, to read the section of the organic 
act under which this Assembly has been elected : 

That two years after the completion and publication of 
the census, in case such condition of general and complete 
peace with recognition of the authority of the United States 
shall have continued in the territory of said Islands not in- 
habited by Moros or other non-Christian tribes and such 
facts shall have been certified to the President by the Phil- 
ippine Commission, the President upon being satisfied 
thereof shall direct said Commission to call, and the Com- 
mission shall call, a general election for the choice of dele- 
gates to a popular assembly of the people of said Territory 
in the Philippine Islands, which shall be known as the 
Philippine Assembly. After said Assembly shall have con- 
vened and organized, all the legislative power heretofore 
conferred on the Philippine Commission in all that part of 
said Islands not inhabited by Moros or other non-Christian 
tribes shall be vested in a legislature consisting of two 
houses — the Philippine Commission and the Philippine As- 
sembly. Said Assembly shall consist of not less than fifty 
nor more than one hundred members, to be apportioned by 
said Commission among the provinces as nearly as practica- 
ble according to population: Provided, That no province 
shall have less than one member: And provided further, 
That provinces entitled by population to more than one 
member may be divided into such convenient districts as the 
said Commission may deem best. 

Public notice of such division shall be given at least ninety 
days prior to such election, and the elections shall be held 
under rules and regulations to be prescribed by law. The 
qualification of electors in such election shall be the same 
as is now provided by law in case of electors in municipal 
elections. The members of Assembly shall hold office for 
two years from the first day of January next following their 
election, and their successors shall be chosen by the people 
every second year thereafter. No person shall be eligible 
to such election who is not a qualified elector of the election 



THE PHILIPPINE ASSEMBLY S5 



district in which he may be chosen, owing allegiance to the 
United States, and twenty-five years of age. 

The Legislature shall hold annual sessions, commencing 
on the first Monday of February in each year and continuing 
not exceeding ninety days thereafter (Sundays and holidays 
not included) : Provided, That the first meeting of the Legis- 
lature shall be held upon the call of the Governor within 
ninety days after the first election: And provided further, 
That if at the termination of any session the appropriations 
necessary for the support of the government shall not have 
been made, an amount equal to the sums appropriated in 
the last appropriation bills for such purposes shall be 
deemed to be appropriated; and until the Legislature shall 
act in such behalf the Treasurer may, with the advice of 
the Governor, make the payments necessary for the purposes 
aforesaid. 

The Legislature may be called in special session at any 
time by the Civil Governor for general legislation, or for 
action on such specific subjects as he may designate. No 
special session shall continue longer than thirty days, ex- 
clusive of Sundays. 

The Assembly shall be the judge of the elections, returns, 
and qualifications of its members. A majority shall con- 
stitute a quorum to do business, but a smaller number may 
adjourn from day to day and may be authorized to compel 
the attendance of absent members. It shall choose its 
Speaker and other officers, and the salaries of its members 
and officers shall be fixed by law. It may determine the 
rule of its proceedings, punish its members for disorderly 
behavior, and with the concurrence of two-thirds expel a 
member. It shall keep a journal of its proceedings, which 
shall be published, and the yeas and nays of the members 
on any question shall, on the demand of one-fifth of those 
present, be entered on the journal. 

I can well remember when that section was drafted in 
the private office of Mr. Root in his house in Washing- 
ton. Only he and I were present. I urged the wisdom 
of the concession and he yielded to my arguments and 
the section as then drafted differed but little from the 



36 



THE INAUGURATION OF 



form it has to-day. It was embodied in a bill presented 
to the House and passed by the House, was considered 
by the Senate, was stricken out in the Senate, and was 
only restored after a conference, the Senators in the 
conference consenting to its insertion with great reluc- 
tance. I had urged its adoption upon both committees, 
and, as the then Governor of the Islands, had to assume 
a responsibility as guarantor in respect to it which 
I have never sought to disavow. I believe that it is a 
step and a logical step in the carrying out of the 
policy announced by President McKinley and that it is 
not too radical in the interest of the people of the 
Philippine Islands. Its effect is to give to a representa- 
tive body of the Filipinos a right to initiate legislation, 
to modify, amend, shape or defeat legislation proposed 
by the Commission. The power to obstruct by withhold- 
ing appropriations is taken away from the Assembly, 
because if there is not an agreement as to appropriations 
between the Commission and the Assembly, then the ap- 
propriations of the previous year will be continued ; but 
the power with this exception, absolutely to veto all 
legislation and initiate and shape proposed laws, is a 
most substantial one. The concurrence of the Assembly 
in useful legislation can not but command popular sup- 
port for its enforcement; the discussion in the Assembly 
and its attitude must be informing to the executive and 
to the other branch of the legislature, the Commission, of 
what are the desires of the people. The discharge of the 
functions of the Assembly must give to the chosen rep- 
resentatives of the Philippine electorate a most valuable 
education in the responsibilities and difficulties of practi- 
cal government. It will put them where they must in- 
vestigate not only the theoretical wisdom of proposed 
measures, but also the question whether they can be 



THE PHILIPPINE ASSEMBLY 



37 



practically enforced, and whether, where expense is 
involved, they are of sufficient value to justify the im- 
position of a financial burden upon the people to carry 
them out. It will bring the members of the Assembly as 
representatives of the people into close relations with the 
Executive, who will be most anxious to preserve a har- 
mony essential to efficient government and progressive, 
useful measures of reform. 

Critics who do not sympathize with our Philippine 
policy, together with those who were reluctant to grant 
this measure of a legislative assembly to the Philippine 
people at this time, have not been slow to comment on 
the result of the election as an indication that we are 
going too fast. I differ entirely from the view of these 
critics as to the result of this election and the inferences 
to be drawn from it. 

The small total vote as compared with the probable 
number of the total electorate shows that a considerable 
majority of those entitled to vote did not exercise the 
privilege. This indicates either an indifference or a 
timidity that we would not find in a people more used to 
the wielding of political power; but it affords no reason 
for supposing that as the Assembly proves its usefulness 
and important power, the ratio of votes to the total 
electorate will not rapidly increase. 

The election was held without disturbance. In many 
districts there were bitter controversies, but the com- 
plaints of fraud, violence or bribery are insignificant. 
Although the Government was supposed to favor one 
party, and was subject to much criticism in the cam- 
paign, no one has been heard to say that the power 
of the Executive was exerted in any way improperly 
to influence the election. This furnishes a good object 
lesson. 



38 



THE INAUGURATION OF 



A popular majority of those who exercise the fran- 
chise ha ye voted for representatives announcing a desire 
for the immediate separation of the Islands from the 
United States. This majority is a small one when the 
returns are carefully considered and is much less than 
the ratio between the party representatives in the As- 
sembly would lead one to suppose. However, assuming 
a decided majority for immediate independence, the re- 
sult is one which I thought possible even while I was 
urging the creation of the Assembly. It is not a disap- 
pointment. If it indicated that a majority of the rep- 
resentatives elected by the people were a body of irre- 
concilables determined to do nothing but obstruct the 
present government, it would indeed be discouraging; 
but I am confident from what I know and hear of the 
gentlemen who have been elected that while many of 
them differ with me as to the time in which the people 
of the Islands will become fit for complete self-govern- 
ment, most of them have an earnest desire that this gov- 
ernment shall be carried on in the interests of the people 
of the Philippines and for their benefit, and shall be 
made for that purpose as effective as possible. They 
are thus generally conservative. Those whose sole aim is 
to hold up the government to execration, to win away 
the sympathy of the people in order to promote dis- 
turbance and violence, have no proper place in this 
Assembly. Had the Filipino people sent such a ma- 
jority, then I should have to admit that the granting of 
the Assembly was a mistake and that Congress must 
abolish it. 

It has been reported in the Islands that I was com- 
ing here for the purpose of expressing, in bitter and 
threatening words, my disappointment at the result of 
the election. Nothing could be further from my pur- 



THE PHILIPPINE ASSEMBLY 39 



pose, nothing could be less truly descriptive of my 
condition of mind. I am here, filled with a spirit of 
friendship and encouragement for these members, who 
now enter upon a new field in which they have much to 
learn, but where everything can be learned and this duty 
most efficiently discharged if they are led by an earnest 
desire to assist and guide the government in aiding the 
people. I have no right to appeal to the membership of 
this Assembly to conduct themselves in the discharge of 
their high duties in a manner to vindicate me in the re- 
sponsibility I assumed in urging Congress to establish 
this Assembly, because they should find a stronger reason 
for so doing in their sworn duty ; but it is not inap- 
propriate for me to touch on this personal feature of the 
situation, because my attitude has been misconstrued 
and my sympathetic interest in, and hope for, the suc- 
cess and usefulness of this National Assembly have not 
been properly stated. 

I venture to point out a number of things that you 
will learn in the course of your legislative experience. 
One is that the real object of a legislature is to formu- 
late specific laws to accomplish specific purposes and re- 
forms and to suppress specific evils ; that he makes a 
useful speech who studies the question which he discusses 
and acquires and imparts practical information by 
which the remedies offered can be seen to be applicable 
to the evil complained of; that the office of a legislator 
for a great country like this is one that can be dis- 
charged conscientiously only by the use of great labor, 
careful, painstaking investigation and hard work in the 
preparation of proposed measures. One of the most 
necessary traits in a successful legislator or executive 
is patience. Where the sudden change in that which is 
regarded as a wrong system may paralyze a necessary 



40 



THE INAUGURATION OF 



arm of the government, ways and means must be devised 
to bring about the change gradually. There will be a 
temptation to take up measures which will invite the 
support of popular prejudice rather than measures 
which will really accomplish good for the body politic. 
Such a temptation exists in older legislative bodies than 
this, and we can not hope that it will be absent from 
here; but, in the end, the man who exerts the most in- 
fluence in this body and among the people will be the 
man who devotes most conscientiously his time to acquir- 
ing the information upon which legislation should be 
based and in explaining it to his colleagues and his 
people. The man who is seeking to put his adversary or 
the government in an embarrassing situation may win 
temporary triumph; but the man who himself feels re- 
sponsibility of government, and who, while not conceal- 
ing or failing to state the evils which he considers to 
exist in the government, is using every effort to reform 
those evils, will ultimately be regarded as the benefactor 
of his country. 

I have not the time and doubtless not the information 
which would justify me in pointing out to the Assembly 
the various subjects-matter to which they may profitably 
devote their attention with a view to the formulation of 
useful legislation. They will properly feel called upon 
to devote their attention to public economy in the matter 
of the numerous governmental bureaus which have been 
made the subject of criticism. It is quite possible that 
they may find in their investigations into these matters 
reasons for cutting off officers and bureaus, but I sin- 
cerely hope that no such effort will be made until a full 
investigation is had into the utility of the functions 
which the bureau performs and the possibility of dis- 
pensing with them. I can remember that while I was 



THE PHILIPPINE ASSEMBLY 41 

Governor there was much outcry against the extrava- 
gance of maintaining certain bureaus which in subse- 
quent crises in the public welfare proved their great 
usefulness beyond cavil. Of course we shall encounter 
in this investigation and discussion a radical difference 
between legislators and others as to the function which 
a government in these Islands ought to perform. It is 
entirely easy to run an economical government if all 
that you do is to maintain order and if no steps are taken 
to promote health, to promote education and to pro- 
mote the general welfare of the inhabitants. It is of 
course the object of the person charged with the duty 
of governing a country to reach the golden mean — 
that is, to make governmental provisions for the welfare 
of the people without imposing too great a tax burden 
for the purpose. The taxes in this country are imposed 
partly by the legislature and partly by Congress. The 
former will constantly have your attention. In so far 
as the welfare of the country is affected by the latter, 
to wit, the customs duties, and can be improved by a 
change of them, it would be wise for the Legislature to 
devote much time and thought to recommendations to 
Congress as to how they should be changed, for I doubt 
not that Congress will be willing and anxious to take 
such steps as may commend themselves to the people 
of the Islands in the matter of adjustment of duties, 
having regard to the raising of sufficient revenue on the 
one hand and to as little interference with useful free- 
dom of trade as possible on the other. 

As you shall conduct your proceedings and shape 
your legislation on patriotic, intelligent, conservative 
and useful lines, you will show more emphatically than in 
any other way your right and capacity to take part in 
the government and the wisdom of granting to your 




42 INAUGURATION OF PHILIPPINE ASSEMBLY 



Assembly, and to the people that elected you, more 
power. There are still many possible intervals or steps 
between the power you now exercise and complete auton- 
omy. Will this Assembly and its successors manifest 
such an interest in the welfare of the people and such 
clear-headed comprehension of their sworn duty as to 
call for a greater extension of political power to this 
body and to the people whose representative it is? Or 
shall it, by neglect, obstruction and absence of useful 
service, make it necessary to take away its existing 
powers on the ground that they have been prematurely 
granted? Upon you falls this heavy responsibility. I 
am assured that you will meet it with earnestness, cour- 
age and credit. 

In closing, I can only renew my congratulations upon 
the auspicious beginning of your legislative life in a fair 
election, and to express to you my heartfelt sympathy in 
the work which you are about to undertake, and my 
confidence that you will justify in what you do, and do 
not do, the recommendations of those who are respon- 
sible for that section in the organic act that has given 
life to this Assembly. 



> CHINA AND HER RELATIONS WITH THE 
UNITED STATES 



DELIVERED AT A BANQUET TENDERED BY THE AMERICAN 
ASSOCIATION OF CHINA, SHANGHAI, OCTOBER 8, 1907 

Mr. Chairman and Gentlemen : For the courtesy and 
hospitality evidenced by this beautiful banquet, I wish 
to express to you my grateful acknowledgment. It is 
a great opportunity and pleasure to meet the prominent 
citizens and residents of this great city. Shanghai is 
the business centre and in some respects the political 
centre of the Empire of China. 

On my way to the Philippines, as a representative of 
the President of the United States, to signify the im- 
portance which he attaches to another step in the exten- 
sion of popular self-government in those Islands, I am 
here only by the way as a traveler, accredited with no 
official authority or duty or message in respect of China. 
What I am about to say in respect to China, therefore, 
is said as an American citizen and not as a representa- 
tive of the American Government. 

ATTITUDE TOWARDS THE PHILIPPINES 

One word in respect to the Philippines before I come 
to America's relation to China. Americans interested 
in Oriental and Chinese trade naturally look to the 
Philippine policy of the Government as having a bearing 
upon the attitude of America toward the Orient in gen- 
eral. Reports have been circulated with an appearance 
of authority throughout this part of the world that the 
United States intends to sell the Philippines to Japan or 
some other country. Upon that point I do not hesitate 

43 



44 CHINA AND HER RELATIONS 



to express a decided opinion. The Philippines came to 
the United States by chance, but that Government as- 
sumed a duty with respect to them and entered into an 
implied obligation affecting them, with the people of the 
Philippines, of which it would be the grossest violation 
to sell the Islands to any other Power. The only alter- 
natives which the United States can in honor pursue 
with respect to the Philippines are either permanently 
to retain them, maintaining therein a stable government 
in which the rights of the humblest citizen shall be 
preserved, or, after having fitted the people for self- 
government, to turn the Islands over to them for the 
continuance by them of a government of the same char- 
acter. It is enough to say here that there is not the 
slightest danger of a sudden cessation of the present 
relation of the United States to the Philippines, such 
as would be involved in a sale of those Islands, and that 
for our present purpose the attitude of the United 
States toward China must be regarded not alone as a 
country interested in the trade of China, but also as a 
Power owning territory in China's immediate neighbor- 
hood. 

THE POLICY OF THE OPEN DOOR 

The policy of the Government of the United States 
has been authoritatively stated to be that of seeking the 
permanent safety and peace of China, the preservation 
of Chinese territorial and administrative entity, the 
protection of all rights guaranteed by her to friendly 
Powers by treaty and international law, and, as a safe- 
guard for the world, the principle of equal and im- 
partial trade with all parts of the Chinese Empire. 
This was the policy which John Hay made famous as 
that of " the open door." By written memorandum, all 



WITH THE UNITED STATES 45 



the great Powers interested in the trade of China have 
subscribed to its wisdom and declared their adherence 
to it. The Government of the United States has not 
deviated in the slightest way from its attitude in this 
regard since the policy was announced in 1900. 

I am advised by Mr. Millard, who has written much 
and well on the Far East and has given close attention 
to the statistics of the trade between China and the 
various countries of the world, that the trade, both ex- 
port and import, between China and the United States 
is second only to that of Great Britain. He says there 
is much difficulty in fixing the exact amount of trade 
because of the long-established custom of treating every 
piece of merchandise that comes from Hongkong as an 
importation from British territory. It is certain, 
therefore, that the American Chinese trade is sufficiently 
great to require the Government of the United States 
to take every legitimate means to protect it against 
diminution or injury by the political preference of any 
of its competitors. It cannot, of course, complain of 
loss of trade effected by the use of greater enterprise, 
greater ingenuity, greater attention to the demands of 
the Chinese market and greater business acumen by its 
competitor, but it would have the right to protest 
against exclusion from Chinese trade by a departure 
from the policy of the open door. The acquiescence in 
this policy by all interested nations was so unhesitating 
and emphatic that it is hardly worth while to speculate 
as to the probable attitude of the United States were 
its merchants' interests injured by a violation of it. 

How far the United States would go in the protec- 
tion of its Chinese trade no one of course could say. 
This much is clear, however, that the merchants of the 
United States are being roused to the importance of 



46 CHINA AND HER RELATIONS 

their Chinese export trade, that they would view politi- 
cal obstacles to its expansion with deep concern, and 
that this feeling of theirs would be likely to find ex- 
pression in the attitude of the American government. 
Domestic business in the United States has expanded so 
enormously, and has resulted in such great profits, as 
to prevent American business men from giving to the 
foreign trade that attention which it deserves and which 
they certainly would give, but for more profitable busi- 
ness at home. As the population of the United States 
increases, as its territory fills and its vast manufacturing 
and agricultural interests become greater, its interest 
in foreign trade is certain to increase. The manufac- 
turers now take little care to pack their goods or to give 
them the sizes as desired by Chinese purchasers, but this 
stiff-necked lack of business sense is disappearing. We 
shall soon find the same zeal and the same intense interest 
on their part to induce purchasers in foreign markets 
that now characterize the manufacturers of other nations 
whose home business is not so absorbing as that of the 
manufacturers of the United States. While we have 
been slow in rousing ourselves to the importance of a 
trade which has grown without government encourage- 
ment and almost without business effort to its present 
important proportions, I feel sure that in the future 
there will be no reason to complain of seeming govern- 
ment indifference to it. 

DEVELOPMENT OF THE EMPIRE 

The United States and others who favor the open 
door policy sincerely will, if they are wise, not only 
welcome, but will encourage this great Chinese Empire 
to take long steps in administrative and governmental 
reforms, and in the development of her natural resources 



WITH THE UNITED STATES 47 



and the improvement of the welfare of her people. In 
this way she will add great strength to her position as a 
self-respecting Government, may resist all possible for- 
eign aggression seeking undue, exclusive or proprietary 
privileges in her territory, and without foreign aid can 
enforce the open door policy of equal opportunity to all. 
I am not one of those who view with alarm the effect of 
the growth of China with her teeming millions into a 
great industrial empire. I believe that this, instead of 
injuring foreign trade with China, would greatly in- 
crease it, and while it might change its character in 
some respects, it would not diminish its profit. A trade 
which depends for its profit on the backwardness of a 
people in developing their own resources and upon their 
inability to value at the proper relative prices that 
which they have to sell and that which they have to 
buy, is not one which can be counted upon as stable or 
permanent. 

MONETARY REFORM 

I may stop a moment in this connection to say that 
the Monetary Commission headed by Professor Jenks, 
which was sent at the expense of the United States to 
adopt a gold standard, sought to effect a reform that 
would have inured greatly to the benefit of the Chinese 
people. The example of Japan and the Philippines 
justifies this statement. While the recent rise in the 
price of silver has reduced somewhat the difficulty of 
the two standards, the elimination from business of the 
gambling element involved in the fluctuations of ex- 
change due to the difference between the gold and the 
silver standard would be ultimately of great benefit to 
the merchants and the common people of China, and to 
the stability and fairness of Oriental business. I am 



48 



CHINA AND HER RELATIONS 



sincerely hopeful that it will not be many years before 
such a reform is brought about. 

CHINA FOR THE CHINESE 

For the reasons I have given it does not seem to me 
that the cry of " China for the Chinese " should 
frighten anyone. All that is meant by that is that China 
should devote her energies to the development of her 
immense resources, to her industrious people and to the 
enlargement of her trade and to the administrative re- 
form of the Empire as a great national Government. 
Changes of this kind could only increase our trade with 
her. Our greatest export trade is with the countries 
most advanced in business methods and in the develop- 
ment of their particular resources. In the Philippines, 
we have learned that the policy which is best for the 
Filipinos is best in the long run for the countries which 
would do business with the Islands. 

REFORM IN ADMINISTRATION IN CHINA 

It is a pleasure to know that the education of Chinese 
in America has had much to do with the present steps 
toward reform begun by the Government in China. It 
is not to be expected that these reforms shall be radical 
or sudden. It would be unwise if they were so. A 
nation of the conservative traditions of China must 
accept changes gradually, but it is a pleasure to know 
and to say that in every improvement which she aims at, 
she has the deep sjmrpathy of America, and that there 
never can be any jealousy or fear on the part of the 
United States due to China's industrial or political 
development, provided always that it is directed along 
the lines of peaceful prosperity and the main- 
tenance of law and order and the rights of the individ- 



WITH THE UNITED STATES 49 



ual, native or foreign. She has no territory we long 
for, and can have no prosperity which we would grudge 
her, and no political power and independence as an Em- 
pire, justly exercised, which we would resent. With her 
enormous resources and with her industrious people the 
possibilities of her future can not be overstated. 

THE BOYCOTT ENDED 

It is pleasant to note a great improvement in the last 
two years in the relations between the United States and 
China. In the first place, through the earnest efforts 
of President Roosevelt, the administration of the 
Chinese immigration laws of the United States has been 
made much more considerate. The inquisitorial harsh- 
ness to which classes properly admissible to the United 
States under the treaty between the two countries were 
at one time subjected, has been entirely mitigated with- 
out in any way impairing the effectiveness of the law. 
The boycott, which was organized ostensibly on the 
ground of such harshness of administration, proved in 
the end to be a double-edged knife, which injured 
Chinese even more than Americans, and other foreign 
countries quite as much. Happily that has now become 
a closed incident, a past episode. 

RETURN OF INDEMNITY 

Again, the United States has exhibited its wish to do 
full justice to China by a return or waiver of the in- 
demnity awarded to it for injuries and expenses grow- 
ing out of the Boxer trouble. It has been said that 
we have done only what we ought to do. This may be 
so, but a nice sense of international obligation is not so 
universal that it may not justly increase the friendly 
feeling between the parties to the transaction. 



50 CHINA AND HER RELATIONS 



REFORM OF AMERICAN CONSULAR SERVICE 

With the full approval of President Roosevelt, Mr. 
Root secured the legislation needed to improve our Con- 
sular service and to place it on a merit basis. I do not 
think it too much to say that the Consular representa- 
tives in China within the last decade have not been up to 
the standard which the importance of the business inter- 
ests of the United States in China demanded. Aware 
of this, the administration at Washington has within 
the last three years given special attention to the selec- 
tion of Consuls in China. This was made evident in the 
selection of both Mr. Rodgers and Mr. Denby as Con- 
suls-General at Shanghai. It is a new sensation for an 
American to come to a Chinese city and find as his 
Consular representative one who knows the Chinese 
language and who understands the Chinese Empire as 
few Chinese understand it. I congratulate you citizens 
of the United States on having such a representative of 
your interests in this great commercial community as 
Mr. Denby. 

ESTABLISHMENT OF AN AMERICAN COURT. APPROVAL, OF 

ITS WORK 

Finally, another great step has been taken by the 
Government of the United States to improve its rela- 
tions to China. Many years ago the Chinese Empire 
granted the right to citizens of the United States to 
reside in so-called concessions within the borders of the 
Chinese Empire, and there enjoy the security of living 
under the government and administration of law by 
officers of the United States. This extra-territoriality 
was chiefly important in securing an administration of 
justice in accordance with the principles and laws ob- 



WITH THE UNITED STATES 



51 



taining in the United States. It imposed an impera- 
tive obligation upon the United States to see to it that 
the justice thus administered by the officers whom it 
vested with judicial powers should be of the highest and 
most elevating character. I regret to say that this 
obligation for many years did not receive the attention 
and care that it ought to have had ; but in the last Con- 
gress, at the instance of Secretary Root, under the 
guidance of Mr. Denby, then the Chief Clerk of the 
State Department, and now your Consul-General at 
Shanghai, with the able assistance of Mr. Denby's 
brother, a Member of Congress from Michigan, and of 
Senator Spooner of Wisconsin, a law was passed which 
properly recognizes the dignity and importance of the 
power conferred by the Chinese treaty upon the Govern- 
ment of the United States to administer justice in re- 
spect of citizens of the United States commorant in 
China by creation of a U. S. Circuit Court for China. 
Our Government was fortunate in the selection of a 
gentleman as the first judge of that Court who had four 
years' experience in the Orient as Attorney-General of 
the Philippines, and who came to Shanghai with an in- 
timate knowledge of the method of uniting, in one ad- 
ministration, the principles of the common law of the 
United States with the traditions and conditions of a 
foreign country. His policy in raising high the stand- 
ard of admission to the bar and in promoting vigorous 
prosecutions of American violators of law and the con- 
sequent elimination from this community of undesir- 
able characters who have brought disgrace upon the 
name of Americans in the cities of China, can not but 
commend itself to everyone interested in the good name 
of the United States among the Chinese people and 
with our brethren of other countries who live in China. 



52 CHINA AND HER RELATIONS 



It involves no small amount of courage and a great deal 
of common sense to deal with evils of this character and 
to rid the community of them. Interests which have 
fattened on abuses can not be readily disturbed without 
making a fight for their lives, and one who undertakes 
the work of cleansing and purifying must expect to 
meet resistance in libel and slander and the stirring 
up of official opposition based on misinformation and 
evil report. I am glad to think that the Circuit Court 
of China has passed through its trial and that the satis- 
faction which its policy has brought to the American 
and foreign communities in China and to the Chinese 
people will not be unknown to the Administration at 
Washington, at whose instance this Court was first 
established. 

NEED OF MORE COMPLETE BODY OF LAWS FOR AMERI- 
CANS IN CHINA 

I have read Judge Wilfley's opinions both in civil and 
in criminal matters. He has worked hard and well. 
He has made it plain that some additional legislation by 
Congress is necessary to lay down a few more general 
principles of law which are to govern in the extra- 
territorial jurisdiction of the Court in China. I sin- 
cerely hope and believe that the establishment of this 
Court will make much for the carrying out of exact 
justice in the controversies that arise in the business 
between Chinese and Americans. There is nothing for 
which the Oriental has a higher admiration than for 
exact justice, possibly because he is familiar with the 
enormous difficulty there is in attaining such an ideal. 
If this Court shall lead the Chinese to believe, as it 
ought to do, and will do, that the rights of a Chinaman 
are exactly as secure when considered by this tribunal, 



WITH THE UNITED STATES 



53 



as the rights of an American, and that there is no 
looking down upon a Chinese because he is a Chinese 
and no disregard of his business rights because he is an 
Oriental, it will make greatly for the better relations 
between the two countries. 

FEDERAL BUILDINGS FOR SHANGHAI 

And now what else is needed? It goes without say- 
ing. What you need is a great government building 
here, to be built by the expenditure of a very large 
sum of money, so that our Court and Consulate shall be 
housed in a dignified manner. Our Government should 
give this substantial evidence of its appreciation of the 
importance of its business and political relation to the 
great Chinese Empire. In the Orient, more than any- 
where else in the world, the effect upon the eye is im- 
portant, and it must be very difficult for Chinese to sup- 
pose that the Government of the United States attrib- 
utes proper importance to its trade with China when it 
houses its Consulate and its judges in such miserably 
poor and insufficient quarters as they now occupy. All 
over the United States, Congress has provided most mag- 
nificent courtrooms for the administration of Federal 
justice. Will it, now that it has created a Court whose 
jurisdiction is co-extensive with the Chinese Empire, be 
less generous in the erection of a building which shall 
typify its estimate of the importance of its relation to 
Chinese trade and the Chinese people? 



JAPAN AND HER RELATIONS WITH THE 
UNITED STATES 



delivered at a banquet tendered by the chamber 
of commerce, tokio, september 30, 1907 

Baron Shibusawa, Mr. Mayor and Gentlemen of 
the Municipality and Chamber of Commerce and 
Other Distinguished Citizens of Tokio : I beg to 
extend to you my heartfelt thanks and acknowledg- 
ment for this magnificent evidence of your hospitality 
and good will. It is a little more than two years ago 
since a large party, of whom I was one, was the recipi- 
ent of a similar courtesy and attention in this very 
hotel at the hands of the then Prime Minister Count 
Katsura. So many were we then that I ventured to com- 
pare our coming to the descent of a cloud of locusts 
upon this devoted land. But you stood the onslaught 
nobly and your treatment of us is a bright memory 
never to be effaced. 

At that time you were engaged in a titanic struggle 
with another great nation, but the first traces of the 
dawn of peace were appearing in the east. We Ameri- 
cans shall always feel proud of the part that Theodore 
Roosevelt, with the prestige of the headship of our peo- 
ple, was able to play in hastening the end of the war. 
Peace has come under circumstances honorable to both 
parties, and Japan, having proved her greatness in war 
as in peace, has taken her stand in the first rank of the 
family of Nations. You have concluded new treaties of 
amity and commerce with your former antagonist and 
the wounds of war are healed. 



JAPAN'S RELATIONS WITH UNITED STATES 55 



The growth of Japan in the last fifty years from a 
hermit country to her present position is the marvel of 
the world. In every step of that development, even at 
the very beginning, we Americans are proud to record 
the fact that Japan has always had the cordial sym- 
pathy and at times the effective aid of the United States. 
The names of Commodore Perry, of Townsend, Harris, 
of John A. Bingham, of General Grant and of Theodore 
Roosevelt will be inseparably connected with the his- 
tory of the advance of Japan to the front rank among 
the world powers. 

But now for a moment, and a moment only, a little 
cloud has come over the sunshine of a fast friendship 
of fifty years. A slight shock has been felt in the 
structure of amity and good will that has withstood 
the test of half a century. How has it come about? 
Well, in the first place it took a tremendous manifesta- 
tion of nature to bring it about. Only the greatest 
earthquake of the century could have caused even the 
slightest tremor between such friends. I do not intend 
to consider the details of the events in San Francisco. 
I cannot trespass on the jurisdiction of the Department 
of State, of my colleague Mr. Root, or my friend Mr. 
O'Brien, to discuss them. But this I can say, that there 
is nothing of injustice in these events that cannot be 
honorably and fully arranged by ordinary diplomatic 
methods between the two governments, conducted as they 
both are by statesmen of honor, sanity and justice, and 
representing as they do two peoples bound together by 
half a century of warm friendship. 

It is said that there is one word that is never allowed 
to creep into the diplomatic correspondence between na- 
tions, however hostile, and that word is " war." But 
I am not a diplomat and am not bound by diplomatic 



56 JAPAN AND HER RELATIONS 



usage. I can talk of war. I am not one of those who 
hold that war is so frightful that nothing justifies a 
resort to it. We have not yet reached the millennium, 
and there are international grievances that can be re- 
dressed and just international purposes that can be 
accomplished in no other way. But, as one of our great 
generals has said, " War is hell," and nothing but a 
great and unavoidable cause can justify it. 

War between Japan and the United States would be 
a crime against modern civilization. It would be as 
wicked as it would be insane. Neither the people of 
Japan nor the people of the United States desire war. 
The governments of the two countries would strain every 
point to avoid such an awful catastrophe. 

What has Japan to gain by it? What has the 
United States to gain by it? Japan has reached a 
point in her history when she is looking forward with 
confident hope to great commercial conquests. She is 
shaking off the effects of war and is straining every 
nerve for victories of peace. With the marvelous in- 
dustry, intelligence and courage of her people there is 
nothing in trade, commerce and popular contentment 
and enlightenment to which she may not attain. Why 
should she wish a war that would stop all this? She 
has undertaken with a legitimate interest in so close a 
neighbor to reform and rejuvenate an ancient kingdom 
that has been governed or misgoverned by fifteenth cen- 
tury methods. His Majesty, the Emperor, has shown 
his appreciation of the difficulty of the task by send- 
ing to Korea Japan's greatest statesman, who has ex- 
hibited his patriotism by accepting the heavy burden, 
when, by his years and his arduous labors for his coun- 
try in the past, he has earned a right to rest. No mat- 
ter what reports may come, no matter what criticism 



WITH THE UNITED STATES 57 



may be uttered, the world will have confidence that 
Prince Ito and the Japanese Government are pursuing 
a policy in Korea that will make for justice and civiliza- 
tion and the welfare of a backward people. We are 
living in an age when the intervention of a stronger 
nation in the affairs of a people unable to maintain a 
government of law and order to assist the latter to bet- 
ter government becomes a national duty and works for 
the progress of the world. Why should Japan wish a 
war that must stop or seriously delay the execution of 
her plans of reform in Korea? Why should the United 
States wish war? War would change her in a year or 
more into a military nation and her great resources 
would be wasted in a vast equipment that would serve 
no good purpose but to tempt her into warlike policies. 
In the last decade she has shown a material progress 
greater than the world has ever before seen. To-day 
she is struggling with the abuses which accompany such 
material development and is engaged in an effort by 
process of law to retain the good for her people and to 
suppress the evil. Why should she risk war in which 
all the evils of society flourish and all the vultures fat- 
ten? She is engaged in establishing a government of 
law and order and prosperity in the Philippine Islands 
and in fitting the people of those Islands by general 
education, and by actual practice in partial self-gov- 
ernment, to govern themselves. It is a task full of 
difficulty and one of which many Americans would be 
glad to be rid. It has been suggested that we might 
relieve ourselves of this burden by a sale of the Islands 
to Japan or some other country. The suggestion is 
absurd. Japan does not wish the Philippines. She has 
problems of a similar nature nearer home. But, more 
than this, the United States could not sell the Islands to 



58 JAPAN AND HER RELATIONS 



another power without the grossest violation of its 
obligation to the Philippine people. It must maintain 
a government of law and order and the protection of 
life, liberty and property itself or fit the people of the 
Islands to do so and turn the government over to them. 
No other course in honor is open to it. 

Under all these circumstances then, could anything be 
more wicked and more infamous than the suggestion of 
war between nations who have enjoyed such a time- 
honored friendship and who have nothing to fight for? 
" If this be true," someone asks, " why such reports 
and rumors of war?" The capacity of certain mem- 
bers of the modern press, by headlines and sensational 
dispatches, to give rise to unfounded reports has grown 
with the improvement in communication between dis- 
tant parts of the world. The desire to sell their papers, 
the desire for political reasons to embarrass an existing 
government and their even less justifiable motives have 
led to misstatements, misconstructions, unfounded 
guesses all worked into terrifying headlines that have 
no foundation whatever. In each country, doubtless, 
there are irresponsible persons whom war would aid and 
make prominent, who try to give seriousness to such a 
discussion, but when one considers the real feelings of 
the two peoples as a whole, when one considers the situa- 
tion from the standpoint of sanity and real patriotism 
in each country, it is difficult to characterize in polite 
or moderate language the conduct of those who are at- 
tempting to promote misunderstanding and ill-feeling 
between the two countries. 

It gives me pleasure to assure the people of Japan 
that the good will of the American people toward J apan 
is as warm and cordial as ever it was and the sugges- 
tion of a breach of the amicable relations between them 



WITH THE UNITED STATES 59 



finds no confirmation in the public opinion of the United 
States. It is exceedingly gratifying for me to have as 
my companion in my visit to these shores, Mr. O'Brien, 
the Ambassador to Japan from the United States. We 
have been friends for years. I am sure you will find 
in Mr. O'Brien all that could be desired in one whose 
chief official duty it will be to preserve the friendship 
between our two countries. 

I have already referred to the enthusiastic welcome 
which was accorded our party of American Congress- 
men two years ago by the people of Japan. So great 
was the kindness of his Majesty the Emperor and the 
officers of the Government that we were overcome with 
our welcome. Coming now to this country for the 
fourth time, I am an old story and am not entitled to 
any other welcome than that to be accorded an old 
friend who comes often. The distinction of being the 
Emperor's guest another time, I do not deserve and 
should feel it my duty to decline, enjoyable as the honor 
is, but for the fact that I know that his Imperial Maj- 
esty graciously adopts this course, not as a personal 
matter, but to signify to the American people and gov- 
ernment the continuance of his friendship for the United 
States. It gives me the greatest pleasure and is a 
great honor for me to be able to bring a reciprocal mes- 
sage of good will from our President and our people. 



AN APPRECIATION OF GENERAL GRANT 



NEW YORK CITY, MEMORIAL DAY, MAY 30, 1908 
FOREWORD 

My father, Alphonso Taft, was a member of General 
Grant's cabinet at the end of his second term. They 
were very warm friends. They were both men of sim- 
ple, straightforward nature and became very fond of 
each other. I was brought up with an intense reverence 
for the memory of General Grant, and a personal feel- 
ing of gratitude to him for his kindness to my father. 
When I was invited to deliver an address at his Tomb 
on Riverside Drive on Memorial Day, therefore, I felt 
it my duty to accept. In comparing his life with that 
of Lincoln, for I had recently been engaged in the study 
of the latter, it seemed to me that the development of 
Grant's marvelous qualities after the war began, was 
even more remarkable than that which took place in the 
life of Lincoln, and that it would emphasize and make 
more wonderful the greatness of Grant's character to 
describe the shadow and utter discouragement that 
rested on his life before the war. In doing this I stated 
the facts as I understood them. This evoked in one or 
two newspapers, and from some individuals of promi- 
nence, a severe criticism of what I had said in respect 
to Grant's early life. By way of explanation I gave 
the following statement to the Associated Press: 

" I am very much distressed that anything I have 
said should be construed to be an attack upon General 
Grant's memory. I yield to no man in my admiration 
for General Grant, in my high estimate of his remark- 

60 



AN APPRECIATION OF GENERAL GRANT 61 



able qualities and character, and of the great debt that 
the Nation owes him. In my memorial address I attrib- 
uted his resignation from the army in 1854 to his weak- 
ness for strong drink, because from Mr. Garland's life 
of General Grant and the evidences he cites, and from 
other histories, I supposed it was undoubtedly true. 

GREAT VICTOEY OF HIS LIFE 

" I referred to the matter only because it seemed to 
me that it was one of the great victories of his life that 
he subsequently overcame the weakness. The wonder of 
his life was that with all the discouragements that he 
encountered before the Civil War, including this, he be- 
came the Nation's chief instrument in suppressing the 
Rebellion. I venture to say that no impartial man can 
read my Memorial Day address and say I do not give 
General Grant a place in history as high as that 
given him by any of his historians or his admirers. 

44 The lives of our great men belong to the country. 
If facts are told showing that they had weaknesses which 
they overcame, the force of their successful example is 
greater to lift the youth of the country up to emulate 
them than if they are painted as perfect without temp- 
tation and without weaknesses." 

ADDRESS 

The custom of decorating the graves of those who have 
died in war for their country is a beautiful and useful 
one. It brings us to a contemplation of those crises in 
our history in which our countrymen, numbered by the 
hundreds of thousands, from a sense of duty solely, 
parted with all that the Nation might live. " Greater 
love hath no man than this that he lay down his life for 
his friends." I do not know any place which thrills one's 



62 AN APPRECIATION OF GENERAL GRANT 



bosom with such patriotic ecstasy as the sepulchre of 
the unknown dead in Arlington Cemetery. The thought 
of the heroism and sacrifice of those who, without a mur- 
mur and without even hope of personal credit or glory, 
gave up all to maintain a sacred cause, makes all motive 
of personal advancement or ambition seem small and 
sordid. It was the distinguishing characteristic of our 
Civil War that, from generals to the humblest privates, 
the army was actuated by a real love of the cause. 
There are those who think the war was unnecessary — 
that it might have been avoided. I can not agree with 
them. The situation was one for which only such a con- 
vulsion as war, dreadful as it was, could afford a com- 
plete remedy. This day, which brings back to us the 
awful losses that the war entailed and renews the fond 
memories of those known and unknown heroes whose 
devotion to duty is an ever living assurance of the 
patriotism of this people, should for a time take us out 
of the atmosphere of self-seeking, of money-making, of 
pleasure-hunting, and of peaceful sloth, that we may 
value again the many instances it revives of mental and 
physical courage, self-denial, self-restraint, and self- 
sacrifice. The day, with its reminiscences, assures us 
that the hearts of our people to-day, eager as they seem 
now in the search for wealth and comfort, would fur- 
nish a response to the Nation's call as full, as willing, 
and as mighty as was the response when the struggle 
for the Nation's existence began in '61. The Civil War 
is the great epic of our history, and though fully 
forty-three years have passed since peace was declared, 
a grateful Nation is still conferring rewards on the 
brave participants of the struggle, and honoring the 
memory of its dead. The enormous effort of the whole 
people as a Nation, and the burdens they gladly assumed 



AN APPRECIATION OF GENERAL GRANT 63 



to maintain the national integrity, and to cut out the 
cancer of slavery that was eating away our national 
life, do not grow any less, from an historical stand- 
point, as the decades pass. In the making of history 
in a republic, political controversy colors the contempo- 
rary view, so that a considerable time must elapse before 
the credit, or lack of it, properly to be ascribed to a 
free people for carrying out any policy, can be meas- 
ured. The greatness of our Nation, as shown in the 
struggle of the Civil War, however, is now everywhere 
recognized, and in the perspective of forty years, there 
is none to decry or belittle it. 

We are a humor-loving people. We dislike shams. 
Our sense of the ridiculous is very keen, almost too 
keen, and in the mercantile and material spirit which 
has been rife, we are prone to make light of exhorta- 
tions to patriotism, and the forms and symbols through 
which patriotism finds expression. I think we have 
gone too far in this direction. Patriotism is a real 
virtue, and the forms and symbols which suggest it, and 
by Avhich we recognize its existence and our respect for 
it, are proper reminders of a serious duty, and keep us 
in touch with it as an elevating motive. The disposition 
to dispense with all form which characterized our Puritan 
ancestors, has, I think, been greatly modified, and rea- 
sonable persons now recognize the advantage of cere- 
mony — not only in religious worship, but also in the 
discharge of many other functions analogous to reli- 
gious worship in their sacred character. 

Take the administration of justice. It is well that 
judges should be clothed in robes, not only, that those 
who witness the administration of justice should be 
properly advised that the function performed is one dif- 
ferent from, and higher, than that which a man dis- 



64 AX APPRECIATION OF GENERAL GRANT 



charges as a citizen in the ordinary walks of life; but 
also, in order to impress the judge himself with the con- 
stant consciousness that he is a high-priest in the temple 
of justice and is surrounded with obligations of a sacred 
character that he cannot escape and that require his 
utmost care, attention and self-suppression. 

So, too, when the national anthem is played, every 
true-hearted American should make known his sense 
of the presence of the vital essence of nationality in 
the notes of the Star Spangled Banner by rising and 
removing his hat. 

Mere forms these may be, but they are the evidence 
of the existence of a love of country, and the more fre- 
quent ly we are conscious of the presence in us of such 
a feeling, the more certain we can be that our acts of 
courage and self-sacrifice will correspond to it when oc- 
casion arises. 

Hence, the advantage of the celebration of a day like 
this, or of the Fourth of July, or of Washington's 
Birthday — lest we forget the obligations that are upon 
us as citizens of our common country — lest we forget 
the gratitude we should feel to our ancestors who 
founded the Nation, and to their descendants who saved 
it, in the Civil War, from dissolution and destruction. 

It always gives force and emphasis to our interest in 
memorials of this character if we have, in our minds, the 
concrete conception of the persons who made the sacri- 
fices that we celebrate; if we have relatives who gave 
up their lives and whose graves we can reconsecrate, 
each returning Decoration Day. And to those of us 
who do not have this inspiring association of kinship 
for some hero of the war, it gives a personal touch, 
and the necessary concrete element, to take up and re- 
view the life of one of the leaders of the struggle and 



AN APPRECIATION OF GENERAL GRANT 65 



learn from the vicissitudes of his career the makings of 
greatness and the tests of patriotic devotion. 

It is appropriate, therefore, for us to gather at this 
magnificent structure dedicated to the memory of one 
whose name in the history of the foundation and main- 
tenance of this Nation's life will always be associated 
with those of Washington and Lincoln. 

We have in the beautiful white shaft which rises high 
on the banks of the Potomac, and which comes unbidden 
in its silent purity into every landscape of the Nation's 
Capital, the country's expression of its gratitude to 
Washington. There is as yet no adequate national 
expression of the popular feeling of love and reverence 
for the martyred Lincoln. But this magnificent sepul- 
chre on the banks of the beautiful Hudson in the great- 
est center of population of the new world, is an appro- 
priate expression of the debt which the Nation owes to 
Grant — the greatest military hero of the Civil War. 

At this place, in this presence, and before an Associa- 
tion of his comrades that bears Grant's name, it is 
fitting to stimulate our patriotism by a brief reference 
to his remarkable life, character and public service. 

When we consider the galaxy of great statesmen and 
patriots that waited upon the conception and birth of 
our Nation and made them possible, it is very difficult 
to avoid a conviction that there was Providential inter- 
ference to secure to the life of our Nation a successful 
growth. Consider the wonderful adaptability of the 
character of Washington to the crises that were pre- 
sented from time to time in the Revolutionary War, and 
then after the war was over, to the still greater crisis in 
the life of the Nation when he was called upon to use 
his power of composing difficulties in the Constitu- 
tional Convention, whose work made the thirteen quar- 



66 AN APPRECIATION OF GENERAL GRANT 



reling states a united country. Consider the abilities 
of Hamilton and Jefferson, and Madison and Marshall, 
that were all of them necessary to give strength and 
substance to the new Nation. So, too, is it difficult not 
to yield to the conviction that the same Providence pre- 
sided over the fate of this country when the terrible 
struggle caused by the cancer of slavery made necessary 
such a convulsion as that of the War of the Rebellion, 
and was manifested in the presence of Lincoln and 
Grant to meet the exigencies of that crisis. 

I shall not stop to-day to dwell upon the grandeur 
and pathos of the character of Lincoln, or to point out 
how wonderful it was that from such squalid beginnings 
there could be developed the traits and qualities needed 
in our martyred President to save the country. The 
character of Grant as developed by the war and as nec- 
essary to the result, was as remarkable in its way, con- 
sidering his previous history, as was that of Lincoln. 
It is true that Grant received an education at West 
Point ; but certainly nothing was developed there in 
him to indicate his fitness or ability to meet great re- 
sponsibilities. He did well in the Mexican War, as 
did other lieutenants. He manifested, as regimental 
quartermaster, energy and familiarity with his duties. 
But in 1854 he resigned from the Army because he had 
to. He had yielded to the weakness of a taste for strong 
drink, and rather than be court-martialed he left the 
Army. He returned from Vancouver on the Pacific 
Coast to his family at St. Louis without money, without 
property — a disheartened man. He accepted from his 
father-in-law a loan of seventy-five acres of land upon 
which he constructed a house for his family to live in, 
and here he carried on farming operations. His chief 
business seemed to be that of selling wood, of cutting it 



AN APPRECIATION OF GENERAL GRANT 67 



and piling it in the backyards of the well-to-do people 
of St. Louis. After six years of this life, he gave up 
farming because of ill health, and went into the real 
estate business for a year. He failed hi this. His 
associate dissolved the partnership. Then, at last, his 
father offered him $600 a year as a clerk in his leather 
store at Galena, Illinois, and thence he moved from St. 
Louis. He worked here for a year also. During these 
seven years, though everything looked dark, he over- 
came in a great measure his weakness for strong drink. 
But he was so constituted, so retiring, so lacking in 
" push " for himself, that it seemed impossible for 
him to earn a livelihood, even when he had given 
hostages to Fortune in the shape of a wife and four 
children. 

Then the Civil War came on. Grant had never been 
a dreamer of possible military glory. He had gone to 
West Point because it offered him an opportunity for 
an education. He did not like life at West Point, 
and while he seemed in the Mexican War to be well 
adapted to the command of men, to be well adapted to 
the duty of quartermaster, he never had that vaulting 
military ambition that was present in the character of 
Napoleon and other great military leaders. He ten- 
dered his services at the beginning of the war solely f rom 
a sense of duty and obligation for his education. His 
having been a student at West Point and a regular 
army officer necessarily brought him to the front when 
military training and experience were in such great de- 
mand. He modestly suggested in his letter to the Ad- 
jutant-General at Washington that he believed he was 
fitted to command a regiment. He never gave evidence 
of military ambition. He visited Cincinnati seeking 
to become a staff officer of McClellan, but in vain. And 



68 AN APPRECIATION OF GENERAL GRANT 



then, by great good luck, he was made the Colonel of the 
Twenty-first Illinois, by Governor Yates. 

What a marvelous change came into his life after 
this ! From the time he took command of that regiment 
until the surrender at Appomattox, his life was one 
continual, well-directed, well-planned effort to suppress 
the rebellion. From that time on, his constant quest 
was to find and fight the enemy. Beginning with the 
Battle of Belmont, he was always in the field and always 
seeking the Confederate forces. Though in the west, 
he suffered, as did the Eastern generals, from the in- 
terference of the War Department, and the paper 
strategists like Halleck; and the freedom of his move- 
ments was curtailed and his constant activity restrained 
by timidity and jealousy of his superior officers. But 
in spite of all this he pressed on, and by the victories he 
won he compelled the War Department to give him a 
freer hand. Fort Henry, Fort Donelson and Shiloh 
were victories that shone like stars in the darkness of 
the defeats of other Union commanders, and although 
relieved from all command for a short period, he finally 
was put in command of the army charged with the duty 
of taking Vicksburg — and he took it. Then followed 
the great battle of Chattanooga and Missionary Ridge, 
after which he was called to Washington, made Lieu- 
tenant-General and Commander of the entire army of 
the United States. Then for the first time, he com- 
manded against Lee, and for a year he measured swords 
with that great military leader of the South, who ulti- 
mately succumbed and surrendered to him the Army of 
Northern Virginia, at Appomattox. 

Of course, it is not to be questioned that Grant's 
abilities to command developed with his increasing ex- 
perience. It is not to be questioned that his success 



AN APPRECIATION OF GENERAL GRANT 69 



depended, too, upon the resources of the North that 
furnished him. men and equipment. But in war as in 
other things in life, as in all history, merit is determined 
by the event, and it was Grant who led the armies and 
infused his personal spirit in their leadership. It was 
Grant that finally subdued the rebellion. It was at 
one time customary to criticise Grant's campaigning and 
to intimate that his knowledge of military strategy was 
not such as to justify a comparison of him with Lee and 
other generals. Grant had a very broad conception 
of the work which the North had before it in subduing 
the South. He had an opportunity in his life to know 
the Southern people and to discriminate in respect to 
them so as to understand that while they talked & great 
deal, they could also do a great deal. He believed that 
the only way of subduing the rebellion was by fighting 
the armies of the rebellion, and that after all, the con- 
test between the two parts of this Nation was a contest 
of resources of men and of wealth. And in the end, 
it proved to be so. His judgment was vindicated. 

It is said that Grant was not a man of military 
genius. It is difficult to define what genius is. Some 
describe it as the capacity for taking infinite pains. If 
so, Grant was a genius. Halleck was a great authority 
on military science and grand strategy, and he never 
planned a campaign unless, like a lawyer with his prec- 
edents, he could turn to the page of the military text- 
book and justify his plan by a reference to a battle of 
Caesar, Napoleon or Frederick. Had he been able to 
anticipate Grant's plan for the taking of Vicksburg, 
he would certainly have prevented it. And yet, in com- 
paring the strategic ability of Grant with that of other 
generals, it can be truly said that there is no campaign 
in the Civil War that showed more originality, greater 



70 AN APPRECIATION OF GENERAL GRANT 



celerity of movement, better calculation of opposing 
forces, and more effective results, than the one begin- 
ning with the capture of Grand Gulf, continued by the 
battles of Jackson, Champion Hills and the Big Black, 
and ending with the surrender of Vicksburg. Equally 
well wrought out, though not so difficult of execution, 
was the battle of Chattanooga, Missionary Ridge and 
Lookout Mountain. 

We are told by those who know, that Grant was ex- 
ceedingly familiar with all the campaigns of great mili- 
tary leaders, that his memory was retentive and his in- 
terest in the science was great. But he had sufficient 
common sense, he had a sufficient real grasp of military 
problems, he had sufficient understanding of the differ- 
ence in conditions under which previous campaigns had 
been fought and those which he had to fight, to exercise 
original thought and to free himself from the bonds of 
military precedent, as at Vicksburg. 

Grant was a man of such a sensitive nature that he 
could not bear to see even animals subjected to pain. 
And yet his conception of war and its necessities was so 
clear that the dreadful losses sustained by him in the 
Wilderness, at Spottsylvania, and at Cold Harbor, and 
in the other campaigns against Lee, did not turn him 
from his purpose or lead him to change his plan, which 
he had deliberately formed, of wearing Lee out and by 
constant hammering, of ending the army of Northern 
Virginia. His purpose was, at the cost of losses which 
the Northern army was able to stand, to inflict losses 
upon the Southern army which, in the end, meant its 
destruction. A calculation of the losses which the army 
of the Potomac sustained during the first three years 
of the war shows them to have been far greater than 
those sustained by Grant during his campaigns of '64< 



AN APPRECIATION OF GENERAL GRANT 71 



and '65 against Lee ; and it is certainly not too much to 
say that had Grant's military career as a general begun 
in the east as it did begin in the west, the war would 
not have been lengthened out to a full four years. 

The tenacity with which Grant conducted a cam- 
paign, the speed with which he followed up a victory, 
the promptness with which he was on hand the next 
morning with a force ready to fight after a drawn bat- 
tle, if put into practice in the army of the Potomac 
during the first three years of the war would certainly 
have brought about an earlier termination. 

Grant's idea of a war was a fight and a continuous 
series of battles, and his theory of winning victories 
was, that the side which was first ready the morning 
after a battle to resume it, would win in the end. 

The greatness of the man was seen in his willingness 
to assume responsibilities, and his power of standing 
the strain when defeat and disaster seemed to threaten 
the success of his plans and to indicate their weakness. 
It was then, having determined on what his plan should 
be, he stuck to it and pushed it through in the face of 
all opposition and vindicated his judgment by ultimate 
success. He was entirely willing to receive advice, but 
his decision was his own. 

Another quality which he had as a great military 
commander was the power of selecting competent sub- 
ordinates and of instilling into them confidence in him 
and his purpose, which almost insured success. The 
men he especially selected were Sherman, Sheridan, Mc- 
Pherson, Rawlins and Logan, and how well they justi- 
fied his choice ! When he came east, he suffered from 
an absence of that mutual understanding between com- 
mander-in-chief and subordinate commanders that had 
been of such value to him in his earlier campaigns. 



72 AN APPRECIATION OF GENERAL GRANT 



The history of Grant's relation to those of his sub- 
ordinates to whom he gave confidence and whom he had 
himself selected is a fascinating one. The relations 
which existed between him and Sherman, it is pleasant 
to dwell upon. The utter absence of jealousy between 
them and the pleasure which each took in the successes 
of the other are as delightful as they are rare. Could 
anything be more exquisite than the story of Sherman's 
writing a long protest to the War Department against 
the wisdom of the campaign east of Vicksburg, which 
easily is the greatest strategic success of the war, and 
Grant's pigeonholing and returning to Sherman the 
protest after the campaign was won? Then, in Sher- 
man's letter to Grant, when Grant was appointed to the 
command of the army, his expressions of admiration 
and confidence all make us think more of our human 
kind, because we encounter so frequently the small jeal- 
ousies between the great which sometimes are permitted 
to interfere with the successful progress of events, even 
in the crises of our national life. The love that existed 
between Grant and Sheridan is another ennobling rela- 
tion that it is pleasant to contemplate. And the mutual 
confidence which each reposed in the other, and which 
was so abundantly justified, furnishes another instance 
of the course of true friendship between the great in 
which no yellow spot of jealousy tortures the eye. 

One characteristic of Grant is shown in a letter which 
Lincoln wrote concerning him in which he says, with 
respect to previous generals, his experience had been 
such that he always expected after a general had been 
appointed, to hear from him that a great many things 
were needed in the army which he knew that Lincoln 
was not able to give him, and that this was followed by 
the statement that if he had those things, then he 



AN APPRECIATION OF GENERAL GRANT 73 



could win the victory. He said Grant differed from 
the other generals in this respect, that he took what he 
had and went ahead and with those things he did what 
he could and what was to be done. He gave an in- 
stance: He said he had fifteen thousand cavalrymen at 
Harper's Ferry, without horses. He had attempted to 
get horses and could not secure them. Previous gen- 
erals had said to him that if they could have that fif- 
teen thousand cavalry, they could accomplish great 
things and win a victory. What Grant said was, 
" With your authority I will arm these men and make 
them infantrymen, or I will send them home." 

And so it was that through the battles of Belmont, 
Fort Henry, Fort Donelson, Shiloh, Vicksburg, Chatta- 
nooga, the Wilderness, Spottsylvania, Cold Harbor, 
Five Forks anc? Appomattox, with all the numerous 
contests that these names cover and include, Grant was 
always fighting with the men and the material he had. 
He realized that omelets could not be made without 
breaking eggs. He knew that a war could not be carried 
on without fighting. And he was conscious that the 
more the fighting to a purpose was constant, the sooner 
the war would end. He was willing to be called callous, 
and indifferent to loss of life, painful to his sensitive 
nature as that charge must have been, if only by 
the losses which were sustained peace be ultimately 
gained. 

It is difficult to associate the real personality of 
Grant as it showed itself in the seven years in civil life 
before the war and as it appeared in the intimacy of 
family and personal associations at any time, with that 
of a victorious commander of an army of a million men. 
He was naturally so modest, so retiring, so sweet-tem- 
pered, so pure of speech and thought, so sensitive at 



74 AN APPRECIATION OF GENERAL GRANT 



the exhibition of pain, either on the part of persons or 
animals, apparently so lacking in 44 push," so indisposed 
to seek prominence, one could not imagine that under- 
neath these traits there was such an iron will and such 
a power to stand the strain of any responsibility in the 
pursuit of a plan which he had made up his mind could 
be worked and made successful. The directness and 
straightforwardness of his nature gave him a sim- 
plicity with which we do not always associate the power 
of great concentration of thought and will to accom- 
plish a purpose. And it certainly was a marvelous 
combination of traits of character that in the seven 
years before the war made Grant so unsuccessful in 
business, and subsequently made him the tower of 
strength that he was, as the victorious leader in the 
greatest war in modern times. 

His modesty, his lack of expectation that anyone 
would think much of him, seems to have given him an 
undue appreciation of, and an excessive gratitude for 
favors done him. He seems never to have forgotten a 
kind word. And a generous attention, received from 
no matter whom, he sought to repay many fold. A 
knowledge of this one of his characteristics led men of 
little scruple to take advantage of it, and of him. He 
trusted his friends as no man trusted before. And his 
trust was in a number of instances misplaced. But the 
faults he had, and the weaknesses he had, were generous. 
They were those that make us love his memory the more 
and forget the mistakes that they led him into. 

The country owes more to Grant than can be esti- 
mated for the great things which were accomplished 
during his two terms as President. The Geneva arbi- 
tration, the veto of the inflation bill, the passage of the 
resumption bill, were his work. But in all of his long 



AN APPRECIATION OF GENERAL GRANT 75 



and useful public life, the two greatest scenes were at 
Appomattox and at Mt. McGregor. 

At Appomattox he showed in its finest degree his 
modesty, and in his earnest desire to secure a peace in 
which the defeated would suffer as little as possible, he 
manifested the highest patriotism. 

At Mt. McGregor, after his wonderful and success- 
ful struggle under the shadow of impending doom to 
write the memoirs which were to free his name and 
estate from debt and financial disaster, his death was 
heroic. 

This magnificent Mausoleum on this grand site upon 
the beautiful river furnishes such a hero a fitting rest- 
ing place. May it forever remain to inspire his coun- 
trymen to patriotic thought and effort! 



THE ARMY OF THE UNITED STATES 



ADDRESS BEFORE THE BOARD OF TRADE OF COLUMBUS, 
OHIO, APRIL 2, 1908 

I am always glad to visit this central and Capital city 
of Ohio, where the Governor executes, the Legislature 
legislates and the steady growth of this enterprising 
community measures the progress of our great State. 
The last time I had the honor of addressing an audience 
in this city was in this very hall in the heated days of 
August of last year, the memory of which still makes 
my heart heat in sympathy for those unfortunates who 
were subjected to a Turkish bath of an hour and three- 
quarters duration. I promise to inflict upon the present 
audience no such cruel and unusual punishment. 

I have selected for a topic to-night an institution in 
this country which I think has too little popular con- 
sideration and attention in times of peace. I refer to the 
Army of the United States. The Navy is a favorite 
of the people, whether they belong to the web-footed 
class that go down to the sea in ships, or inhabit the 
Mississippi Valley, or live upon the Rocky Mountain 
range. There is something about the concrete strength 
of a great battleship and the simplicity and courage of 
the sailorman behind the gun representing us in all 
parts of the world, and coming into contrast with the 
ships and sailors of other countries, that appeals to the 
imagination of the American people. They take the blue- 
jackets into their arms with affection, and no appro- 
priation necessary for the increase and perfection of the 
Navy seems unreasonable. I am glad that this is so, 
because I should be the last to detract from the impor- 

76 



THE ARMY OF THE UNITED STATES 77 



tance of maintaining and increasing the Navy, and am a 
great admirer of the efficiency and spirit of its blue- 
jackets and marines. But what I wish to plead for to- 
night is that the boys in khaki and blue of the regular 
army are just as much entitled to the kindly feeling and 
high interest of the American people as the sailors of the 
Navy, and that the work they have done and are doing 
and may have to do in the future is of just as great 
importance as any that the Navy has done, is doing or 
will have to do. The function which the Navy performs 
is perhaps a bit more spectacular than that of the 
Army, and that of itself explains perhaps the difference 
in the popular attitude toward the two services. 

Take the battle of Manila Bay, and the operations 
which followed it. The glory which the Navy properly 
received from its accomplishment upon that May morn- 
ing far exceeded anything that was accorded to the 
Army's arduous and delicate work which it carried on 
in the four years succeeding for the pacification of the 
Philippine Islands, and bringing them into a condition 
in which the benevolent policy of McKinley could be 
carried out successfully. 

The detailed history of the instances of courage, pri- 
vation, patience and patriotic devotion to our national 
policy in the Islands, exhibited by the officers and en- 
listed men of the Army, which will do justice to them, 
can never be written, first, because an adequate record 
of it does not exist; and, second, because it can only be 
known to the people of the United States through results, 
and not through such a triumphant and dramatic pic- 
ture as that we all like to dwell upon, of the epoch-mak- 
ing naval victory off Cavite. 

The naval action is usually affirmative. To be use- 
ful it must strike, and this makes its function dramatic 

f 



78 THE ARMY OF THE UNITED STATES 



and commands the popular attention. The function of 
the Army of late years has generally been that of ac- 
complishment by patient effort, stretching sometimes 
over months and years, but always requiring close atten- 
tion, tenacious courage and self-restraint. Its work has 
been not only that of attack but more often and for 
longer that of police administration and pacification. 
Take its work in San Francisco. Could anything be 
more commendable than the maintenance of order by the 
Army through that stricken city, shaken by the earth- 
quake, destroyed by fire and about to be exposed to the 
awful violence of mob and riot, when, under the in- 
spiration of the two-o'clock courage of Funston, its con- 
trol passed into the hands of the regular army, and 
thereafter theft and rapine and violence were banished 
by the long faithful hours of the regular soldiers on 
guard? 

Take the instance of Cuba. The formidable naval 
fleet came first and gave to the hands of those seeking 
peace the effective power to command it; but in a short 
two weeks, to the Army fell the task of garrisoning the 
island in such a way as to discourage lawlessness and 
encourage the friends of order. I ask you, has any- 
thing been finer in the history of the Army than the way 
in which our 5,000 men have settled down in an alien 
country like Cuba, have secured the maintenance of 
peace and order without the slightest complaint that 
any officer or soldier has exhibited any lack of respect 
for the feelings of the Cubans under the trying circum- 
stances of our occupation, or any lack of tact in carry- 
ing out the difficult task assigned to them? But such 
work, made up of an infinity of little things and prov- 
ing a constant and uniform self-restraint, appreciation 
of the situation and commendable military discipline^ 



THE ARMY OF THE UNITED STATES 79 



does not strike the popular imagination and is not apt 
to call forth the admiration and gratitude of the country 
whose servants and representatives these soldiers are. 

Then too the Navy is removed from contact with the 
people. It is flying a flag in foreign waters. It rarely 
if ever has to exercise any authority in domestic troubles. 
There is an indefinite, elusive but influential impression 
in the minds of many that there is something in a regu- 
lar army inconsistent with the purposes of a republic. 
It derives its force from the uses to which regular or 
standing armies have been put in maintaining govern- 
ments over oppressed and helpless people. The election 
of an emperor by the Prastorian Guard, the suppression 
of a Parliament by the army under Cromwell and the 
many other instances in history in which the will of the 
people has been defeated by the trained soldiery of a 
tyrant, are used to point the moral that in a government 
of the people, by the people and for the people, a stand- 
ing army should be looked upon with suspicion and re- 
duced to the lowest number. It is doubtless true that 
the enlargement of popular influence in all governments 
has exercised a beneficent influence to reduce the prob- 
ability of war. Still there have been many wars in this 
century, and not a few of them have proceeded from the 
popular desire without encouragement by Government 
authority. Making every concession, therefore, which 
history justifies in favor of the peaceful character and 
tendency of a Republic, he is a very unwise statesman 
who urges upon the people a policy reducing the 
efficiency and size of the Army so as to make the country 
utterly helpless should emergencies arise which it is en- 
tirely reasonable to anticipate. 

We need an army for three purposes: first, as essen- 
tial to any satisfactory system of national defense; 



80 THE ARMY OF THE UNITED STATES 



second, as an indispensable instrument in carrying out 
our established international policy ; and, third, the sup- 
pression of insurrection and civil strife. 

In his Farewell Address, Washington advised his 
countrymen to remember " that timely disbursements to 
prepare for danger, frequently prevented much greater 
disbursements to repel it," and also advised them to 
take " care always to keep themselves, by suitable estab- 
lishments, in a respectable defensive posture." 

John Adams, Washington's successor as President, 
said that " the national defense is the cardinal duty of a 
statesman." 

Secondly, we have taken the position with respect to 
the republics established in this country in Central and 
South America and the West Indies, which is approved 
by both the great national parties and which has been 
repeatedly announced as the policy of the government 
by various Presidents and Secretaries of State. I allude 
to the Monroe Doctrine. There are differences of 
opinion as to what this doctrine includes, and as to 
how and with what limitations it ought to be stated. 
Speaking generally, however, it is an assertion on the 
part of the United States to the European and other 
powers of the world that no interference with the Cen- 
tral and South American and West Indian governments 
by a European power will be permitted which shall have 
for its object and result the acquisition by a European 
power of the territory of such nations for colonization 
or territorial aggrandizement. This is not a doctrine 
sustained by any principle of international law; it is a 
governmental policy which this government believes to 
be essential for its own interests and well for the in- 
terests of the countries whose integrity it protects. 
Whatever the motive, whatever the purpose, the asser- 



THE ARMY OF THE UNITED STATES 81 



tion involved must rest for its sanction, not upon the 
international law acquiesced in by all civilized nations, 
but rather upon the power to enforce it of the nation 
which asserts it. By virtue of this doctrine we in effect 
and for defensive purposes extend the frontiers of the 
United States far beyond the actual confines of our 
territory, to Central America and the islands of the 
Gulf of Mexico and the Caribbean, to the mouths of 
the Orinoco and the Amazon, to Magellan and Tierra del 
Fuego. As we assume the right, so we must undertake 
the responsibility of measures for the defense of those 
boundaries whenever, for the purposes of disturbing the 
integrity of any of the many nations thus included, a 
foreign force shall invade their borders. How could 
we maintain such a doctrine if it should ever be ques- 
tioned in the strenuous race for trade and for coloniza- 
tion that now is rife among the European powers? 
Could we do it otherwise than by an expeditionary force 
to the country invaded for the purpose of assisting the 
local forces in repelling the invader? It is true that our 
Navy, enlarged as it is, would discharge a most useful 
function in the defense of the invaded country, but it 
would make but little headway against hostile forces 
landed therein, and after that, the only method of as- 
serting our international policy would be by the use of 
the Army of the United States. 

Third. Of course there is no probability of a recur- 
rence of a great Civil War, but should the forces of 
anarchy and socialism and revolt against organized 
government manifest themselves, a well-organized militia 
would be most necessary. The suppression of local dis- 
turbances is to the regular army a very unpleasant duty, 
and it is one to which the President would summon regu- 
lar troops with great reluctance. An increase in the 



82 THE ARMY OF THE UNITED STATES 



efficiency of the militia which we may anticipate may 
well relieve the regular army of any such duty. The 
moral effect of a regular army, however, to discourage 
lawlessness is valuable. 

The history of this country since the beginning of 
the Revolutionary War shows that during at least one- 
fourth of the life of the country, the Government has 
had a war on its hands in some part of its territory. 
It is therefore most unwise to prophesy as to what may 
happen in this respect in the future. The people of 
this country down to the time of the Spanish War had 
pursued a policy utterly ignoring the lessons of the 
past. Through national parsimony and the prejudice 
against the efficiency of an Army, and the making of 
proper plans for the organization of national volunteers, 
and the drill and mobilization of the militia, we have in 
times past incurred great losses of life and the expendi- 
ture of immense treasure, a large part of both of which 
might have been avoided had the proper and economical 
measures been adopted for the maintenance of a small 
but efficient regular army and a suitable force of 
militia. 

This was true of the War of 1812, of the great 
Civil War, and of the Spanish War. 

There is a popular feeling that an army in time of 
peace is not maintained and administered to be used for 
war, and that the army exists merely for show, like 
the mace which is carried before the Speaker of the 
House of Commons, or the truncheon of a field-marshal, 
or the scepter of a king. This impression has led a 
usually practical and hard-headed people like the Ameri- 
cans to the most absurd military policy. An Army is 
for war. If there were no possibility of war, foreign or 
domestic, and we could be guaranteed a continuous 



THE ARMY OF THE UNITED STATES 83 



peace, we should disband the army ; but we have not yet 
arrived at this happy condition. We have not yet 
reached a point in the progress of civilization when war 
and the fear of war do not play a large part in determin- 
ing the policies of governments. The voice of the United 
States in favor of international justice will be much 
more weighty if it is known to have a good army and a 
good navy to enforce its views and defend its rights. 

Now it is a fact that time is indispensable to the mak- 
ing of good soldiers and a good army. Our own ex- 
perience should prevent us from entertaining any illusion 
as to the inefficiency of a brave but unorganized people 
to grapple successfully with another nation equally 
brave but better organized. We have great confidence 
in ourselves and in our power of quickly adapting cir- 
cumstances to meet any national emergency. But this 
should not make us deliberately blind to the most obvious 
military principles. We should not be misled by the 
good luck which has attended us in most of our wars. 
The most insidious argument against the maintenance 
of an army of present efficiency is that we once had a 
magnificent army of volunteers of a million men, the 
flower of which marched down Pennsylvania Avenue in a 
grand review under Grant and Sherman ; and it is asked, 
" Can we not raise such an army again? " The awful 
sacrifice of life and money which we had to undergo dur- 
ing the four years in order to train this great army is 
forgotten, and the country is lulled into the utterly un- 
founded assurance that a volunteer enlisted to-day or a 
militiaman enrolled to-morrow can in a week or month be 
made an effective soldier. There are no better officers, 
no better men in any army than we can raise in America. 
We are a warlike people. Most privates have an in- 
dependence and self-reliance that fit them to adapt them- 



84 THE ARMY OF THE UNITED STATES 



selves to different situations, and there are no braver 
men. But they must know how to shoot straight, they 
must know how to move at the word of command, they 
must understand all the duties of a soldier which grow 
more complicated with modern guns and modern methods. 
They cannot know it intuitively. We have no right as a 
nation to ask our citizens to expose themselves as en- 
listed men in battle without reducing the chances of dis- 
aster and death by proper military education of the 
officers and proper military training of the men. 

I am glad to say that our experience in the Spanish 
and Philippine Wars has had a most healthy effect upon 
Congress and the people at large with reference to the 
preparation for our national defense. After the Civil 
War we rapidly reduced our armament, our navy and 
our army. Our navy was a collection of wooden frigates 
and gunboats that could not stand for a minute before 
the newly invented high-power guns, and our coasts, 
though lined with old-fashioned forts, were utterly de- 
fenseless against European navies. Our army was re- 
duced to 25,000 men, smaller in proportion to the popu- 
lation than ever in the history of the country. Slowly 
but reluctantly in the eighties we took up the projects 
of a new navy, of new coast defenses, but the army was 
still continued until the Spanish War at 25,000 men. 

In the latter part of Mr. Cleveland's administration, 
we asserted the Monroe Doctrine with as much emphasis 
and what might almost be called " truculence," as ever 
in our history, and asserted it against the greatest naval 
power of the world. On the very day when Mr. Cleve- 
land's message went into Congress demanding arbitra- 
tion as to the Venezuelan boundary, there was just one 
modern gun mounted on our whole Atlantic, Gulf, and 
Pacific coasts. 



THE ARMY OF THE UNITED STATES 85 



Since then, and under the stress of the Spanish War, 
we have greatly increased our coast defenses, so that 
now they are very respectable, both on the Atlantic and 
Pacific coasts, although they are by no means com- 
pleted. Since then we have constructed a Navy that in 
point of efficiency is perhaps equal to any except that of 
Great Britain. Since then we have taken progressive 
steps toward the organization of a regular army which 
is to-day much more efficient than ever in the past, and 
is much more capable of expansion and efficient addi- 
tion. But much remains to be done. If I may trespass 
on your patience a while longer, I should like to invite 
your attention to the character of the present army, its 
size, and its capacity for expansion, together with 
needed measures to increase the possibility of its being 
made adequate and useful in time of war. 

The change in the army, its improvement and adapta- 
tion to modern needs are largely due to the ability, 
energy, deep interest and enthusiasm and well-directed 
effort of Elihu Root, Secretary of War under McKinley 
and Theodore Roosevelt. The legislation under which it 
is now maintained was almost all of it drafted and 
pressed upon Congress by that distinguished statesman. 
Such legislation as has been adopted since he laid down 
his office is only corollary to that which he had recom- 
mended and put through, suggested by actual experi- 
ence under his new system. 

The regular army of the United States to-day is 
limited in number of enlisted men to 100,000, exclusive 
of the hospital corps men. There is authority given the 
President to enlist upwards of 50,000 Infantry, 18,000 
Cavalry, 20,000 Coast Artillery, 6,000 Field Artillery, 
and enlisted men of the Signal Corps, the Engineer 
Corps, the Ordnance Corps, and the other subsidiary 



86 THE ARMY OF THE UNITED STATES 



corps, together with 12,000 Philippine scouts, who are 
a part of the regular army, to make that number about 
114,000 men. But this right to increase the number of 
enlisted men in all the different corps is limited by the 
superior restriction that altogether they shall not exceed 
100,000 men. Of course the power of the President to 
enlist this number of men is subject to the further limi- 
tation that Congress may withhold appropriations to 
pay more than a certain number, so that while he might 
temporarily increase the force, his power would practi- 
cally soon be at an end on the failure of Congress to 
approve such an increase by withholding the necessary 
money with which to pay them in the future. The num- 
ber of men and officers actually authorized by order of 
the President in the aggregate is in round numbers 
76,000 men, while the number of officers and men ac- 
tually in the army does not reach 60,000. The reason 
for this difference between the number authorized and 
those actually in service in the army is the difficulty 
that we have had in recruiting. The enlisted man to-day 
receives the same pay which he received in 1861, to wit, 
$13 a month. This is not enough to attract him, al- 
though of course it does not at all measure the actual 
compensation which he receives, because he is fed and 
well clothed and well housed. Still there ought to be an 
increase over the wages which were received by him 
thirty years ago. 

A still greater defect in the present system of com- 
pensation in the army is the failure to pay the non-com- 
missioned officers, the sergeants and corporals, a suffi- 
cient salary to make them permanent members of the 
army. They are in a sense the disciplinary backbone 
of the army. They are the ones who whip the recruits 
into service and make good soldiers of them. They are 



THE ARMY OF THE UNITED STATES 87 



the ones who come much more intimately into contact 
with the men than do the commissioned officers, and 
their pay should be made much nearer to that of the 
commissioned officers than it is to-day. I am glad to say 
that a bill is now pending in the House, which has passed 
the Senate, giving an adequate increase in the pay of 
the enlisted men of the different branches of the army, 
which I hope and believe will relieve us greatly in the 
matter of our recruiting, and enable us to fill up the 
army to the quota authorized by the President. We are 
striving in every way to remove from the life of the 
private soldier those features of it which tend to dis- 
courage reenlistment, and with the increased pay, we 
hope that we may make the life of an enlisted man a 
comparatively attractive one. 

In order properly to discuss the army, we should 
divide it into two forces, the mobile and the immobile 
army. The mobile army is that which may be sent into 
any part of the United States or of the world as an ex- 
peditionary force. It consists of the Infantry, the 
Cavalry, the Field Artillery, the engineers and the sig- 
nal corps, with a suitable part of the hospital corps ; 
and it is divided into tactical units, regiments, brigades, 
divisions and army corps. The immobile army is the 
coast artillery, the duty of which is confined to manning 
the guns of the coast defenses and operating submarine 
mines, torpedoes, searchlights and power plants used 
in connection with the defenses of all fortified harbors 
of the United States. The authorized force of the coast 
artillery is, in round numbers, 20,000. Of this 5,000 
are necessary to operate the submarine mines, torpedoes, 
searchlights and power plants. This leaves a little over 
14,000 for the manning of all guns now mounted in the 
fortifications of the entire country. 



88 THE ARMY OF THE UNITED STATES 



In order to man these guns with one shift of men, 
there are required 37,000 enlisted men, so that the maxi- 
mum number of men authorized to-day available for man- 
ning guns would be about 4,000 less than one-half of a 
complete manning detail. When our coast defenses are 
completed, as they are now projected, both in this coun- 
try and in our insular possessions, and at Panama, the 
number of men required for one complete manning detail 
both for the mines, searchlights, power plants and guns 
will be 55,000. In war this would have to be consider- 
ably increased, because one detail would hardly be 
enough. As it is, under existing circumstances we have 
only 20,000, where we need 37,000 for a complete detail. 
It is now proposed and seems to be practicable, to make 
up the deficit in this manning detail by training a 
militia coast artillery to man the guns of the coast de- 
fenses. The idea has been suggested to the state au- 
thorities, and in many of the states along the coast mili- 
tia companies have been organized for this purpose. It 
offers an opportunity for service to men who do not 
wish to go far from their homes, and yet who would be 
glad to be enrolled in the ranks of the defenders of their 
country when she is in danger, and are willing to devote 
the necessary month or six weeks of each year to the 
training necessary to render them efficient for the pur- 
pose. In time of war they might be willing to enlist 
in the regular coast artillery during the war and thus 
make up the regular detail which is essential to the 
effectiveness of our coast defenses. Taking away 
20,000 from the authorized strength of the army for 
the immobile force, it leaves 55,000 as a mobile army 
under the present quota authorized by the President, or 
80,000 for a mobile army if the President were to in- 
crease the authority to enlist to 100,000 men. There are 



"THE ARMY OF THE UNITED STATES 89 



30 regiments of Infantry, 15 regiments of Cavalry, 6 
regiments of Field Artillery, two regiments of engineers, 
and two regiments of the signal corps. This by no 
means represents the proper proportion for an army in 
the field. For an army in the field the Cavalry ought 
not to exceed 10 per cent, of the total force of which 
the Infantry will represent more than 80 per cent. It 
will be necessary to amend the law distributing the 
Cavalry so as to double the number of cavalry regiments 
and reduce each regiment to six troops, instead of twelve 
as now constituted, because in no army in the world but 
ours does the regiment of Cavalry have more than six 
troops. Most of them have but five. 

The drain upon the army by sending 5,000 troops to 
Cuba and 12,000 troops to the Philippines, is such that 
there must be an increase in the Infantry regiments. 
Whether this shall involve an increase in the actual 
number of Infantry or only divide them into more regi- 
ments is a question which it is not necessary at present 
to discuss. But certainly there ought to be more regi- 
ments of Infantry in view of the constant necessity for 
changing their tours of duty from the United States to 
the Philippines and from the United States to Cuba. 

The separation of the Coast Artillery from the Field 
Artillery, effected by the law of last year, has been a 
move in the right direction and a great improvement. 
There was no logical connection between the duties of 
those engaged in our coast defences and the manning 
and use of the great guns of the fortifications and the 
drill and tactics of the Field Artillery. The latter be- 
long to the mobile army just exactly as the infantry 
and cavalry do, and they are now placed where they 
belong. 

We are attempting to enlarge posts so that we shall 



90 THE ARMY OF THE UNITED STATES 

have brigade posts, with the tactical unit of a brigade 
for maneuvers under general officers and with the 
brigade discipline and drill which prepare the men and 
officers for field work in large maneuvers. All this prog- 
ress is slow but it is being made. 

One of the greatest improvements which has been made 
in our Army is in the graduate education of its officers. 
West Point is as thorough a school for general military 
education as there is in the world, and this has been long 
established. The great improvement, however, in the 
education of our officers in the last decade has been the 
institution of graduate schools in the different branches 
of the service. Officers are now studying in garrison 
schools, and then are offered the opportunity, if they 
show themselves fit, of taking a course in the Artillery 
School at Fortress Monroe, in the Engineers' School at 
Washington, in the Infantry and Cavalry School at 
Fort Leavenworth, or in the Cavalry School of Equita- 
tion at Fort Riley, according to their respective 
branches. Then if they succeed by competition in es- 
tablishing their right to do so they are enabled to take 
a course at the Staff College at Leavenworth. Selected 
from all the Army are the most likely young officers for 
the War College at Washington, where they are engaged 
in working out problems of grand strategy. 

The other great improvement in the Army has been 
the establishment of a General Staff, consisting of men 
selected by a board of general officers without consulta- 
tion with the President or the Secretary of War for their 
fitness, who act as advisers to the Chief of Staff and to 
the Secretary of War, and whose business it is to recom- 
mend policies and to make plans for defense and for 
possible campaigns. The Chief of Staff and the General 
Staff coordinate all the Bureaus of the Army and pre- 



THE ARMY OF THE UNITED STATES 91 



serve a consistent policy without respect to changing 
Secretaries and the changing personnel of the general 
officers. The systems of education and of the General 
Staff have been in operation now for several years, and 
fully justify the hopes of those who brought about these 
two reforms. 

There is a dearth of officers. We have only about 
3,600 officers, and so many are detailed on important 
duties connected with military schools, with militia, with 
teaching at West Point, with the graduate schools in the 
Army, and with the recruiting service and on the General 
Staff, that a bill has passed the Senate authorizing the 
increase of officers by something over 600. This will en- 
able us to detail officers to take charge of the militia in 
every state and to remain permanently on duty with the 
National Guard, and thus make it possible to make the 
discipline of the National Guard like that of the regular 
army. 

This brings me to the great improvement which has 
been made by recent legislation in respect to the militia. 
By the " Dick Bill," which was introduced in Congress 
by the then Representative and now Senator Dick, and 
which passed in 1902, the National Guard became recog- 
nized as the organized militia of the state, subject to 
call by the general government and entitled to arms, 
ammunition, clothing, supplies and transportation, in 
case it organized and adopted the discipline of the 
regular army. 

Another bill is now pending which is likely to pass 
increasing the benefits to be derived by the National 
Guard, enlarging the time of service and the character 
of service, under direction of the Federal authorities, 
and authorizing a continuance of the joint maneuvers 
between the regulars and the militia which have already 



92 THE ARMY OF THE UNITED STATES 



proven to be successful and have developed an intense 
enthusiasm and interest on the part of the state soldiers. 
In the course of five or six years we may count on having 
a well-disciplined force of organized militia, subject to 
call by the President, amounting to 120,000, so that we 
might be sure of putting in the field on short notice an 
army of 200,000 men. This would not be enough, and 
we should have to resort to a volunteer law which has 
been introduced in Congress, and which I hope will pass 
preparing for the organization of volunteers unde 
regular officers and officers of the National Guard, whic 
shall constitute a third or volunteer force of the Unite 
States Army. 

A bill is now pending in Congress also authorizing 
the employment upon a small stipend for a drill ever™ 
two years, of men who have served in the regular army 
and been discharged, as a reserve corps out of which th~ 
regular army could be enlarged at once in case wa 
were declared or threatened. This would enable us t 
increase the regular army to 150,000 men without grea 
difficulty, and would secure us 250,000 well equipped, 
well drilled soldiers of the Republic. This plan for a 
small army, capable of rapid expansion, is perfected 
but not carried out fully in legislation. I am glad to 
say, however, that Congress manifests such an interest 
in the development of the Army and a willingness from 
time to time to improve the various branches that dur- 
ing the next decade I feel confident that we shall soon 
have a regular army and a reserve citizen soldiery suffi- 
cient to put into the field 250,000 men capable of carry- 
ing on war with courage and efficiency. Of course in the 
support of such an army the Republic is subjected to 
very heavy expense, because the whole army, both regu- 
lar, militia and volunteers, are volunteers and must re- 



THE ARMY OF THE UNITED STATES 93 



ceive compensation sufficient to enable them to live and 
support somebody beside themselves. 

We do not raise the armies by conscription except in 
the very last resort. As a consequence, our armies are 
vastly much more expensive than the European armies 
even in time of peace. Our regular army to-day of 
60,000 men costs us about $72,000,000 a year. France 
maintains an army of 546,000 men, and it costs her 
$133,000,000 a year. Germany maintains an army of 
646,000 men, and it costs her $144,000,000 a year. In 
other words, France has an army nine times the size of 
ours which it costs her less than twice the sum to main- 
tain, while Germany has an army ten times as large as 
ours which it costs her just about double our sum to 
maintain. In addition to this we are paying out pen- 
sions for our Civil War and Spanish War veterans of 
$150,000,000. In view of this it is entirely natural for 
the representatives of the people in Congress to hesitate 
to increase a military establishment so expensive as com- 
pared with other nations. The lesson from the pension 
fund, however, instead of being, as it is thought to be, 
a restraint upon expenditure to secure an efficient army, 
ought, if historically and critically considered, to be a 
warning against the lack of preparation, for the ex- 
tent of that pension roll is itself the greatest exponent 
of the fatuity of a policy of insufficient national defense. 

A short-sighted parsimony with respect to an efficient 
army, which might suppress a rebellion or end a foreign 
war in a short time, leads to the raising of enormous 
fresh levies of unskilled troops and the expenditure of 
great treasure which might have been avoided. After 
the emergency arises, and when it is too late for economi- 
cal preparation, then the Legislature opens the Treas- 
ury by appropriations and provisions of the greatest 



94 THE ARMY OF THE UNITED STATES 

liberality to meet the necessities which only time and 
thorough preparation could properly and economically 
meet. 

I do not think that I can close this address by any 
words more appropriate than those of Washington while 
he was President when he said: 

" The United States ought not to indulge a persuasion 
that, contrary to the order of human events, they will 
forever keep at a distance those painful appeals to arms 
with which the history of every nation abounds. 

" There is rank due to the United States among na- 
tions, which will be withheld, if not absolutely lost, by 
the reputation of weakness. 

" If we desire to avoid insult, we must be able to 
repel it. 

" If we desire to secure peace, one of the most power- 
ful instruments of our rising prosperity, it must be 
known, that we are, at all times, ready for war." 



THE PANAMA CANAL 



at the meeting of the ohio state bar association, 
put-in-bay, july 11, 1906 

Ladies and Gentlemen, Members of the Ohio Bar: 
It is a great pleasure to renew my acquaintance with 
members of the profession, and especially members of 
the profession of my own state. 

It was not as easy as it might be for me to fill this 
engagement, though it was of a year's standing, and 
I must apologize to the members of the profession for not 
taking up a legal subject. But if you will take a man 
as your speaker this afternoon who has forgotten about 
all the law he knew, you must expect him to select some 
subject that is rather easier to him than sound law. 

While you are lawyers and lawyers' wives, you are also 
Americans, and you are certainly interested in the great 
project that the United States has assumed to carry 
through — the union of the two oceans by a canal across 
the Isthmus of Panama. The enterprise has been a 
subject of consideration almost since the Isthmus of 
Panama and the Pacific were discovered; and I be- 
lieve one of the first suggestions in the sixteenth century 
was the construction of a sea-level canal. We had to 
wait something more than three hundred years before a 
real attempt could be made to do that which has been in 
the minds of men so long. 

There were three routes suggested. One was the so- 
called San Bias route, the shortest of all proposed. It 
is only thirty miles from shore to shore, and a large 
part of that on the Atlantic side could be located in 

95 



96 



THE PANAMA CANAL 



the bed of the San Bias River, but the difficulty with 
the route is that right in the middle of it is a mountain 
fifteen hundred feet high. The advocates of the route 
proposed a ship tunnel some five miles long, one hun- 
dred and fifty feet high, and from one hundred and 
fifty to two hundred feet in width. If the mountain 
were granite, if it were solid rock, the proposition would 
be more feasible than it is. According to our best infor- 
mation, the mountain instead of being granite, instead 
of being solid so that when pierced it would hold the 
shape of the projected tunnel without support, is prob- 
ably of a volcanic and friable nature, such as to require 
the making of a supporting arch, and an arch of that 
extent, five miles long, one hundred and fifty feet high 
and two or three hundred feet wide, is as yet beyond 
practical engineering accomplishment. 

The other route, that is, other than the Panama route, 
is the Nicaragua route, which has the advantage of the 
lowest natural level and a natural lake at that level, 
through which a channel could be dredged. The level 
of the water in the lake above the sea is one hundred and 
ten feet. But the route has the disadvantage of greater 
length, one hundred and thirty-seven miles, and also the 
disadvantage of a river — the San Juan River — floods in 
which would have a dangerous tendency to swamp any 
canal that might be constructed. 

The most practical route — and that which Congress 
has settled upon — is the Panama route. This passes 
over the continental divide, between the two oceans at 
Culebra Hill. With the exception of Nicaragua, this is 
the lowest natural continental divide between Alaska and 
Patagonia. Originally Culebra Hill, through which the 
cut is to be made, was three hundred and forty feet 
high. It has been reduced by the French so that the 



THE PANAMA CANAL 



97 



present level of the lowest part of the cut is about one 
hundred and forty feet above sea level. The diffi- 
culty with this route is the very extended excavation 
necessary, and even a greater difficulty is the control 
of the Chagres River. 

De Lesseps, after he had completed the Suez Canal, 
came, fresh with that victory, to build the canal at 
Panama, and his plan, not settled upon by careful con- 
sultation of engineers, but reached in the enthusiasm of 
an arduous work done, was for a sea-level canal. He 
attempted it and spent two hundred and forty-seven 
millions of dollars, but his effort proved to be a failure. 
His projected canal was seventy-two feet wide and 
twenty-nine and one-half feet deep — a sea-level canal. 
You will all remember the disastrous result, the break- 
ing up of the company, the liquidation, the bankruptcy 
and finally the transfer of the assets to a new French 
Panama Canal Company that called together a com- 
mittee of engineers — indeed, called together two com- 
mittees of engineers — who went into the subject of the 
proper type of canal with great care and proposed 
the construction of a lock-canal. The lock-canal pro- 
posed was sixty feet above sea level. It was to be a sea- 
level canal to Bohio, a place thirteen miles from the 
Atlantic shore where a dam, lake and flight of locks were 
to be made. The canal was thence to be carried clear 
across the Isthmus at a level of sixty feet to within four 
miles of the Pacific, where the sea level was to be reached 
again by a flight of locks. The French Panama Canal 
Company continued the work under this plan, but finally 
that company also ceased energetic work because its 
money gave out and it continued thereafter only desul- 
tory attacks upon the problem. 

In 1899 the Isthmian Canal Commission was appointed 



98 



THE PANAMA CANAL 



by the government of the United States to make recom- 
mendations, and they considered the matter from 1899 
to 1902. They first recommended the Nicaragua Canal, 
because, after consultation with the French Panama 
Canal Company, they considered that the price de- 
manded was much too high. Subsequently, however, in 
January, 1902, the new French Panama Canal Com- 
pany telegraphed to say that it would sell all that it 
had there, which had cost upwards of two hundred and 
fifty millions of dollars, for forty million dollars, includ- 
ing its stock in the Panama Railroad Company, of 
which it owned sixty-nine seventieths of the entire issue. 

On June 28, 1902, Congress passed the Spooner Act, 
which gave preference to the Panama Canal route over 
the Nicaragua route, and thereupon Mr. Hay made a 
treaty with Senor Herran, of Colombia, by which the 
right of way contemplated in the Spooner Act, for which 
ten million of dollars was to be paid, was granted across 
the Isthmus along the line of the canal as projected. I 
need not rehearse the history of that treaty, the failure 
of the Colombian Senate to ratify it, the revolution in 
Panama, the establishment of the new Republic of 
Panama and the subsequent making of a treaty between 
the United States and Panama by Mr. Hay and Mr. 
Buneau-Varilla, and its ratification by the Senate. 
Panama, by this treaty, conveyed not only a right of 
way for the construction and maintenance of the canal, 
as the Colombian treaty provided, but also a zone for 
governmental purposes of ten miles in width, five miles 
on each side of the axis of the canal, and forty miles 
from shore to shore, together with governmental control 
over the harbors and any additional part of the Isthmus 
that in addition to the ten miles it may become necessary 
to take in order to complete the canal. This is a most 



THE PANAMA CANAL 



99 



important gain for the United States in the substitu- 
tion of the Panama treaty for the Colombian treaty, be- 
cause governmental control of the canal strip is vital in 
securing proper sanitation and police regulation. 

The Spooner Act does not specify exactly what kind 
of a canal shall be constructed. It directs the President 
to construct a canal and the necessary locks and other 
appurtenances. It provides, however, for the issue of 
one hundred and thirty-five million dollars of bonds that 
are to furnish the means by which the canal can be 
constructed. At the time that act was passed, the then 
Isthmian Canal Commission had recommended a lock- 
canal and had reported to Congress that it would cost 
one hundred and forty -five millions of dollars. This 
act provides ten millions in cash for preliminary work 
and one hundred and thirty-five millions in bonds, so 
that it is evident that Congress had in mind the con- 
struction of a lock-canal, according to the plan recom- 
mended. The language of the act, however, as I have 
said, directs the President to construct a canal and 
therefore, of course, every lawyer knows that, in order 
that he may execute the mandate, he is impliedly given 
the power to determine what the type of the canal 
shall be. 

The President appointed, in the spring of 1904, after 
the ratification of the treaty, an Isthmian Canal Com- 
mission under the terms of the act and directed that 
Commission to convene and consult distinguished engi- 
neers who should report upon the type of the canal. 

In the transfer there were conveyed the machinery, 
sixty-nine seventieths of the stock of the railroad and 
all the land and right of way owned by the Canal Com- 
pany. There are some machine shops that are valu- 
able. The railroad is valuable and of course indis- 



100 



THE PANAMA CANAL 



pensable to the construction of the canal. There are 
twenty-one hundred houses for residences of the em- 
ployees of the canal, and there are three or four very 
extensive hospitals, but as all of these had stood in the 
torrid zone for eight or ten years, with very little done 
to them, they were in a bad state of repair and needed 
much work to make them habitable and sanitary. In the 
first place, we could not invite anybody to go there 
unless we made it a place in which people from the 
temperate zone could safely live. The construction of 
the Panama Railroad and also of the Panama Canal 
down to the period when we went there had been at- 
tended with great loss of life from yellow fever and 
malaria. The first matter that we had to take up was 
the question of health on the Isthmus. The gentleman 
who had been in charge of Havana when the yellow fever 
was stamped out — Colonel Gorgas — was put in charge 
at Panama, and he based all his plans for action on 
the mosquito theory of the transmission of yellow fever. 
There has been a good deal of fun made of that theory, 
but Colonel Gorgas, by two years' work, has vindicated 
the wisdom of his confidence in the theory. It may be 
that the disease is transmitted by other means than mos- 
quitoes, but certainly it is transmitted by mosquitoes, 
and when we prevent the mosquitoes from getting at yel- 
low fever patients so that the mosquitoes cannot catch 
the yellow fever, we save the persons whom they sting 
from contracting the disease. We have had yellow 
fever on the Isthmus, but by isolation of yellow fever 
patients and by fumigation and destroying the particu- 
lar kind of mosquito that carries the disease, we have 
really stamped out the disease. The mosquito that 
transmits yellow fever does not fly very far and likes 
damp places in old houses. He does not breed in lakes 



THE PANAMA CANAL 



101 



outside, but he breeds in pools of water in dark cellars 
and in uncleanly houses, and therefore the fumigation of 
the houses is a very effective way of destroying this 
transmitter of the disease. It is different with respect 
to the malarial mosquito. He breeds in pools in the 
field, and the method of preventing his generation and 
increase is by draining possible breeding places, and, 
when this is impossible, by spreading oil over such pools. 

The strip is forty miles long and is used for about a 
half-mile in width, and through that strip four or five 
thousand employees of the health department are em- 
ployed daily in draining marshes, in cutting down the 
vegetation and in spreading oil over the waters that 
cannot be drained. In this way, much good has been 
done in reducing the amount of malaria. 

We are not quite so well situated with respect to 
malaria as we are to yellow fever. So far as mosquitoes 
are concerned, all the natives, at least those who live 
on the sea coast, are immune from yellow fever. The 
disease attacks only the men that come from the high- 
lands or the Americans or the Europeans that go there. 
The cases of yellow fever, even in an epidemic, therefore, 
are few, as compared with the whole population and 
offer few opportunities to the transmitting mosquito for 
taking in the poisonous germs. In respect to malaria, 
however, the case is very different. About sixty-five 
or seventy per cent, of all the natives on the Isthmus 
and of all the blacks that come from the surrounding 
islands, are infected with malaria, and of course, we 
cannot isolate them from mosquitoes that settle on them 
and take the malarial germ from their victims. It does 
seem, therefore, an almost impossible, a hopeless task, to 
prevent the spread of malaria when sixty-five or seventy 
per cent, of the people are infected with it at any rate, 



THE PANAMA CANAL 



and yet by Colonel Gorgas' methods, already described, 
great improvement has been made. 

Of course, if we would have health we must have 
proper houses. These twenty-one hundred houses have 
to be increased in number because we have in our em- 
ployment from twenty-two to twenty-five thousand men, 
and we have to take care of their families, which run 
up the class of new settlers to nearly double that 
number. The reconstruction of the houses has involved 
much time and labor. So, too, we have to give them 
good water. We had to put in a complete water supply 
for the city of Panama and the city of Colon, and for 
the sixteen or seventeen towns between. We have to 
drain every town by a system of sewers, and then we 
have to increase the hospital resources so that now we 
can take care of about one thousand in each. 

All these are preparations before the " dirt begins to 
fly." The American people want everything the next 
morning, and if they do not get it they are not entirely 
reasonable in their complaints. But the truth is that 
the way to carry on a great enterprise like this is to 
get really ready before you begin. Mr. James J. Hill, 
one of the greatest railway constructors of the world, 
told me that he worked two years making preparations 
before he put a spade into the ground in building the 
Great Northern Railway. He said to me : " The trouble 
with you and the President will be that you will be under 
more or less pressure of public opinion to make appear- 
ance of doing the work of actual construction and will 
be pushed into beginning construction before you are 
ready." There has been a very great pressure to go on 
and make the dirt fly. Everybody wants to know, 
" Well, are you digging the canal ? " Well, we are 
digging dirt, but it is not the work of construction — it 



THE PANAMA CANAL 



103 



is work of preparation. We are just about ready to 
begin actual construction. 

We found on the Isthmus a single-track railroad with 
an excellent roadbed, but with very little else adapted 
to the tremendous work of transportation that has to be 
done. The great problem is the disposition of the ma- 
terial that is taken out of the trench that is dug. We 
cannot put it anywhere except where it will not flow 
back into the canal under the influence of heavy rains 
or will not be in our way when we are building the 
works of construction, and, therefore, we have to take a 
great deal of that soil fourteen or fifteen miles either 
way from where it is dug. We, therefore, have to 
double-track the railroad; then we have to increase the 
terminal facilities in order that the equipment and sup- 
plies can be landed and carried promptly to the place 
where they are to be used and set up. 

Then, in addition to the terminals, in addition to 
dredging out the harbor so that the vessels can reach 
the terminals, we have to construct, especially in the 
Culebra cut, what are called spur tracks, running from 
the line of the railroad to the point where the excavation 
is to be made by steam shovels. The spur tracks run 
along levels, constructed in such a way into the cuts that 
the excavated material will always be delivered down 
hill on one side or the other. The length of the spur 
tracks of that sort to be constructed at different times 
is calculated to be about three hundred miles. The levels 
are being now made. The tracks are being made. 

In order to work them in the Culebra cut, we have 
now on hand about sixty-nine steam shovels. But we 
cannot put them into operation all at once. We have 
to work them in gradually. We hope to put as many 
as one hundred steam shovels into operation under such 



104 



THE PANAMA CANAL 



a plan that the work of each shovel will be continuous, 
i. e., that as soon as a shovel fills one car, another is at 
hand to be filled and the steam shovels can be thus oc- 
cupied twenty-four hours a day. As we go in, the steam 
shovels we can use will number about forty and will 
gradually be increased until we reach one hundred; and 
as the work progresses towards completion and the 
place of operation sinks lower and lower and becomes 
narrower and narrower into the bottom, the one hundred 
shovels will have to be diminished until they will number 
but thirty or forty. 

The Culebra cut is eight miles long, and if a sea- 
level canal were constructed the depth of the excavation 
would be one hundred and eighty feet and its width two 
hundred feet at the bottom and more than three hun- 
dred feet at the top. 

The eight-hour law applies on the Isthmus because it 
is government work. Congress has provided that aliens 
may be worked longer than eight hours, and so also their 
foremen and their superintendent. The question, of 
labor is a very difficult one. Three of the West Indian 
blacks are not equal to one of our day laborers in effi- 
ciency and amount of daily work. It has been proposed 
to try Chinamen. The law does not forbid it. The diffi- 
culty in working large gangs of Chinamen is that the 
contractors are inclined to insist on such regulations 
for the control of the laborers that it is difficult to dis- 
tinguish the method of supervising them from involun- 
tary servitude. We are hopeful, however, that work- 
able contracts can be made which secure all lawful and 
proper freedom of action to the individual Chinese la- 
borers. We have been quite successful with about five 
hundred men brought from the northern provinces of 
Spain, who worked in Cuba and who are doing good 



THE PANAMA CANAL 



105 



work now on the Isthmus. One man of this class is 
worth just about three of the West Indian blacks. I 
shall not further discuss this subject except to say that 
the question of the necessary labor in building the canal 
is a very serious one. 

Now the Panama Isthmus, if you have not looked at 
your geography, will surprise you by running east 
and west rather than north and south, so that the 
canal, instead of running east and west, runs from 
northwest to southeast. It is about forty-two miles 
from shore to shore. The line of the canal runs up the 
valley of the Chagres River about twenty-six miles to 
Obispo and Gamboa, where it leaves the valley of the 
Chagres and follows the valley of the Obispo, a tribu- 
tary of the Chagres, for four miles to Culebra Hill, 
where is the great cut, and thence down on the other 
side for ten miles to the Pacific Ocean. The Culebra 
Cut is three-quarters of the way across the Isthmus. 

The Chagres River presents the great problem. It is 
a very winding stream, and a sea-level canal must fol- 
low its valley. In the dry season — and there is a very 
dry season on the Isthmus for three or four months — 
the Chagres at Gamboa, where the canal line and the 
river valley unite, discharges about three hundred and 
fifty cubic feet per second, but in times of flood it has 
been known to discharge seventy-six thousand cubic feet 
a second. The rainfall at Culebra is about ninety inches 
a year, but at Bohio, in the valley of the Chagres, it 
reaches one hundred and forty-two cubic inches a year. 
Provisions must be made to prevent such a flow from 
overwhelming the canal at Gamboa and all the way 
down for twenty-six miles to the Atlantic seashore. 
There are, between Gamboa, the place where the Chagres 
River comes into the prism of the canal as projected 



i 



106 



THE PANAMA CANAL 



and the mouth of the canal on the north side, some 
seventeen or eighteen streams that now empty into the 
Chagres, and the water from these streams, which, in 
times of flood, is about equal to what the Chagres dis- 
charges at Gamboa in times of flood, has also to be 
taken care of. This is the chief reason why previous 
boards of engineers have recommended that a sea-level 
canal be not constructed. They have said not that it 
was impracticable, but that it presented such difficulties 
in the matter of construction in time and cost that they 
did not recommend it as feasible. 

In the summer of 1905, the President appointed a 
board of consulting engineers to consider and recom- 
mend the proper type of canal. There were thirteen 
members and there were included in the number eminent 
English, French, German and Dutch engineers with 
experience in canal construction, as well as leading 
American engineers. The Board divided in opinion. 
All the foreign engineers and three Americans favored 
a sea-level canal, while five of the American engineers 
recommended a lock-canal. The Isthmian Canal Com- 
mission, to whom the board of engineers reported, trans- 
mitted it to the Secretary of War, concurring in the 
recommendation of the minority in favor of a lock 
canal. The Secretary of War also favored a lock canal 
and the President transmitted all the reports to Con- 
gress for its action, with a strong statement of the ad- 
vantages of a lock canal and the disadvantages of a 
canal at the sea level as proposed. 

The sea-level canal, as projected by this majority of 
the consulting engineers, begins on the Atlantic side, 
about a mile to the north of Colon, in the Bay of 
Limon, through which the entrance to the canal must 
be made. Indeed, both types of canal, in order to pro- 



THE PANAMA CANAL 



107 



tect against the constant northerly waves and winds, 
provide a long breakwater, which runs from this point 
of beginning for four miles to the shore of Limon Bay, 
and both plans contemplate a channel dug forty feet 
in the one case, forty-two in the other and five hun- 
dred feet wide from the mouth of this breakwater and 
parallel to it to the shore; then the line of the sea-level 
canal follows in a general way the Chagres River up to 
a point where the Chagres River comes down from the 
mountains at Gamboa, twenty-six miles from the At- 
lantic shore. At Gamboa, in order to take care of the 
Chagres River where it would enter directly the prism 
of the canal, there is to be constructed a dam on rock 
one hundred and thirty feet above the level of the 
Chagres River, so that the level of the water held by 
the dam will be one hundred and seventy feet above 
the water in the projected sea-level canal. This Gam- 
boa dam forms a lake by flooding the water clear back 
up the upper valley of the Chagres some ten or fifteen 
miles. In connection with the dam, there is to be a 
spillway, which, in times of flood, it is proposed to 
use to let out fifteen thousand cubic feet of water a 
second into the prism of the canal. The water is to be 
let down one hundred and seventy feet on steps, in 
order to break the fall, before it is ultimately let into 
the prism of the canal. On the other bank of the 
Chagres, and below Gamboa, there are three other dams 
proj ected in the sea-level plan ; one dam twenty-two 
hundred feet long, made of earth, and seventy-five feet 
high, of sufficient height to back the water over the 
height of land from which the branch stream comes and 
carry it down into another valley. Then there is an- 
other dam eight hundred feet long and seventy feet 
high, and another dam four hundred and ninety feet 



108 



THE PANAMA CANAL 



long and twenty -five feet high; so that you will see in 
the sea-level canal we are not without dams ; and among 
those that we would have would be the highest dam in 
the world — the Gamboa Dam. 

The width of the projected sea-level canal is one 
hundred and fifty feet across the bottom for twenty-one 
miles of the canal between shore and shore. It is one 
hundred and fifty feet wide for about twenty-one miles 
and two hundred feet wide for about twenty-one miles. 

Where the bottom is two hundred feet it is in rock, 
and there they make the width about two hundred and 
eight feet across the top. The bottom width in earth is 
only one hundred and fifty feet, but the surface width, 
due to the greater slope of the banks, is greater than 
the surface width of the canal in rock. When the 
Pacific Ocean, or, rather, the shore-line of the Bay 
of Panama is reached, the canal widens into a channel 
three hundred feet wide that runs out to what is called 
the forty-feet contour of the bay. 

The current, in times of highest flood from the dis- 
charge of the fifteen thousand cubic feet a second from 
the Chagres River, and the discharge of water from the 
fifteen streams that are to be allowed to empty directly 
into the prism of the canal, would be at Bohio, halfway 
down, about two miles and sixty-four hundredths an 
hour, a current which, in the Suez Canal, has been found 
to be one in which large steamers steer badly. The sea- 
level canal is not to be widened at curves and has 
no wider stretches for passing places or stations. The 
Suez Canal is only one hundred and eight feet across the 
bottom, but at passing places it is one hundred and 
forty-seven feet, and at curves it is one hundred and 
thirty-seven feet, so that for practical purposes the 
Suez Canal is of very little less width than the pro- 



THE PANAMA CANAL 



109 



posed sea-level canal at points where the width of the 
canal becomes important. In the Suez Canal steamers 
are not allowed to pass except by having one steamer 
tie up to the bank and the other go by very slowly. 
That is what would have to be done in this sea-level 
canal if it were constructed. The curvature of the sea- 
level canal, from Gamboa Dam to Gatun, within three 
miles of the shore, a distance of twenty miles or more, 
would be four and one-half times what the curvature is 
in the Suez Canal, and the current is just about as great 
at times of flood as it is in the Suez Canal at certain 
stages of the tide. There are no streams that enter into 
the Suez Canal at all. There is one fresh-water canal. 
The Suez Canal, as you know, is through a desert and 
there is no rainfall. The consequence is, that the con- 
ditions surrounding the Suez Canal and its location are 
very different from those which would surround the 
sea-level canal as here projected. A rainfall of one 
hundred and forty-two inches, with sixteen streams en- 
tering into the canal, carried right into the same prism 
of the canal, would be very certain to produce cross- 
currents where the streams enter, in addition to the 
direct current varying from two miles to two miles and 
sixty-four one-hundredths an hour during times of 
flood. A vessel as large as the largest now under con- 
struction, which is seven hundred and eighty-eight feet 
long, eighty-eight feet beam and thirty-eight feet 
draught, would have very great difficulty in getting 
through a canal one hundred and fifty feet wide in a 
current from two to two and a half miles an hour, with 
a curvature of four and a half times that in the Suez 
Canal, and I think that those considerations were prob- 
ably what led Congress, the House and the Senate, to 
prefer the lock canal, which has now been decided upon 



110 



THE PANAMA CANAL 



and which I am, with your permission, about to 
describe. 

The lock canal is not a canal in the proper sense. It 
is a series of lakes. It begins as the sea-level canal 
began, about a mile away from Colon, with the break- 
water four miles long, carried clear to the shore of 
Limon Bay, with a channel five hundred feet wide by 
forty-two feet deep, until the shore is reached; thence a 
five-hundred-foot channel of the depth of forty-five feet 
is continued to Gatun, four miles further. At Gatun 
there is to be a dam seven thousand and seven hundred 
feet in length, one hundred and thirty-five feet in height, 
half a mile thick at the bottom, three hundred and 
seventy-four feet thick at the water level, which is 
eighty-five feet above sea level. The dam rises fifty 
feet above the water level to its crest, which is one 
hundred feet across. The dam is to be constructed of 
earth. We have more earth from excavation than we 
need. It is hard to dispose of it; therefore, it is con- 
venient to dispose of some of it that otherwise we might 
have to carry out to sea in the construction of this 
immense dam. The dam is to be constructed by the 
method known as sluicing, that is, the material mixed 
with water is to be pumped in and the water drawn off. 
This method secures greater solidity of material, for 
when the water is drawn off no crevices are left. At 
the end of this dam, and in a hill with a soft but solid 
rock foundation, there is to be constructed a flight of 
locks. These locks are in three steps for the purpose 
of raising the vessels that come, eighty-five feet from 
sea level to the level of the water behind the dam. The 
locks were projected by the minority of the consult- 
ing board about nine hundred feet long, usable length, 
forty feet over the miter sills, that the miter gates rest 



THE PANAMA CANAL 



111 



on, and ninety-five feet in width, but the President is 
inclined to enlarge those locks to make them one thou- 
sand feet long and one hundred feet in width and forty 
feet in depth, in order to meet the requirements of 
vessels one thousand feet long, which may be constructed. 

These locks, as I say, are in steps. The walls of the 
locks are to be made of reinforced concrete. The out- 
side walls are thirty-six feet in thickness. The locks are 
to be in duplicate. The middle walls between the locks 
are forty feet in thickness. The lock structure will be 
upwards of thirty-six hundred feet in length and three 
hundred and thirty feet in width. The locks are built 
into a hill which lies just to the south of the dam, so 
built that the earth covers the walls of the locks to the 
top. The locks are to have double gates so that al- 
ways against the water above there will be two pro- 
tections. When a vessel enters, if it were to drive 
through the gates it would have to overcome the weight 
of four gates four hundred and fifty tons each of 
weight and a cushion of water about eighty feet thick 
and thirty feet high. These locks as a feature of the 
plan have been criticised on the ground of the danger 
of accidents in their operation. I shall return to that 
again and point out what the danger is and how great 
it is, in view of experience that has been had at the Soo 
Canal. I might say that the lift of each of these locks 
is twenty-eight and two-thirds feet. The lift of the 
lock at the Soo Canal is twenty-one feet. 

The effect of the construction of the dam at Gatun 
is to create a lake that from here around to this point 
[indicating] is about thirty miles long. It creates a 
lake in which the navigation for the purpose of the 
canal is twenty-three miles in extent. At the dam the 
depth of the water is seventy-five feet. As we proceed 



112 



THE PANAMA CANAL 



into the narrower portion, the depth reduces to forty- 
five feet and excavations will have to be made in order 
that that depth may be attained. All this white [indi- 
cating on the map] that you see means a depth of forty- 
five feet or more, so that from this point around by 
the channel for fifteen miles it is really lake navigation, 
and there will be plenty of space for anchoring or any- 
thing else that a vessel would choose to do in a lake. 

The great advantage of the lake, in addition to the 
wide and free navigation it affords, is that it offers a 
safe and easy method of providing for the influx of the 
water from the Chagres River and these fifteen or 
eighteen streams that lie between the Gamboa Dam in 
times of flood and at other times. The lake is so exten- 
sive — it is one hundred and eighteen square miles in 
superficial area — that it can take in all the water that in 
floods will come from the Chagres and its tributaries 
and not feel it in the slightest. In the middle of the 
Gatunda, there is a hill in which a sluiceway is pro- 
jected, through which the flow of water from the lake to 
the sea can be regulated, and the level kept at eighty- 
five feet. 

These streams are taken into the lake on the shore 
of the lake and at points so far from the channel for 
steamers that there is no danger of a deposit of silt 
or the mud which might fill up the channel and require 
constant dredging at a great cost. In the sea-level 
plan, it would be impossible to avoid the necessity for 
persistent dredging and the great expense due to it. 

Here [pointing to the map] you observe these streams 
come in at points all the way from five to eight, and, in 
some cases, ten miles away from the channel, so that 
the heavy material in the water that is brought in falls 
on the shore and does not reach to the channel. 



THE PANAMA CANAL 



113 



The lock canal has a channel five hundred feet or 
more in width for two-thirds of the whole length and 
forty-five feet deep. Only one-seventh of it is two 
hundred feet wide and that four and seven-tenths miles 
through the Culebra Cut. After it passes through the 
cut at Culebra, four and seven-tenths miles, it widens 
into three hundred feet until we reach a lock at Pedro 
Miguel, of thirty feet fall. This is to let vessels down 
into another lake with a level of fifty-five feet above 
the sea, constructed by the erection of three dams on 
the Pacific Ocean, and to be known as Sosa Lake. This 
lake also has a depth of forty -five feet and offers 
lake navigation of five miles from Pedro Miguel to the 
shore of Panama Bay. On the shore at the mouth of 
the Rio Grande River is Sosa Hill, and at each side 
of it are the necessary dams. In Sosa Hill itself dupli- 
cate flights of two locks are to be constructed by which 
vessels are to be let down to sea level into a channel 
three hundred feet wide and forty feet deep, running out 
to the contour line of forty-foot depth in Panama Bay. 

I omitted to say in my description of the sea-level 
canal that there is to be a tidal lock on the Pacific side. 
The tide on the north or Atlantic side rises and falls 
but two feet. The extreme tide variation on the other 
side is twenty-three feet. In order to avoid the current 
that would of course be produced by this difference in 
tidal levels, it would be necessary to have a tidal lock, 
having a total lift of twenty-three feet. It has been 
supposed that that tidal lock might be left open half the 
time, but experience with the tidal lock at the Kiel Canal 
has shown that the channel through the lock has to be 
narrowed to such a point that when the lock is open at 
both ends, the current is increased so as to become dan- 
gerous to navigation. It is necessary, therefore, to keep 



114 



THE PANAMA CANAL 



the tidal lock at Kiel closed all the time, and so would 
it be with a tidal lock in the sea-level canal at Panama. 

Returning for a moment to the lock canal and Sosa 
Lake, at the Pacific terminus, it is a question of doubt 
whether that lake will be constructed. One objection is 
that it brings the locks, with all their machinery, im- 
mediately down to the shore and makes them an easy 
mark for an enemy's guns. That is not true of the 
lock plan on the Atlantic side, because the Gatun locks 
are four miles away from the shore, and no vessel could 
come in within three or four miles of shore of Limon 
Bay. Again, it is doubtful whether the effect of a 
fresh water lake immediately in the neighborhood of 
Panama, which is so near, would be beneficial to the 
health of that city. It has been proposed, and I think 
Mr. Stevens, the chief engineer, is in favor of the 
proposition, to make a sea-level canal from the Pacific 
shore up to Miraflores or Pedro Miguel, where good 
foundations may be had, and there construct a dam and 
a flight of locks as at Gatun, and thus have the series of 
three locks on one side at one place and the three locks 
on the other at one place. That, I think, would econo- 
mize the management of the locks and certainly would 
enable the persons in charge to guard more carefully, 
with less trouble, two centers of possible danger and 
injury rather than three. 

Now I should like to go back for a moment to the 
Gatun dam, which is the keystone, if I may use that 
expression, of the whole lock canal. There are high hills 
at Gatun on each side of the Chagres River seven thou- 
sand and seven hundred feet apart, very near to this 
shore, as you will see, and those hills, therefore, make 
the placing of the dam here of very great advantage, 
because by damming these you flood a large territory 



THE PANAMA CANAL 



115 



and make a great lake. I ought to say that the plan 
recommended by the Isthmian Canal Commission in 1899 
and that favored by previous commissions acting under 
French auspices, contemplated the dam at Bohio some 
thirteen or fourteen miles up the Chagres River, and 
a sea-level canal up to that point. But the foundation 
at Bohio was found to be not as satisfactory as at 
Gatun, and another difficulty was that with the dam 
at Bohio, the lake formed was much smaller, the lake 
navigation was less extensive and did not make as satis- 
factory provision for taking in the flood waters of 
the Chagres and its tributary streams. Most of the 
experts supporting the sea-level canal project admitted 
that the Gatun dam was stable. Mr. Hunter was the 
engineer of the Manchester Ship Canal and was on the 
French Committee Technique which reported in 1898 
on the plan and reported against the sea-level canal, but 
in his later investigations he had seen a new light, and 
when he came to vote this time he voted in favor of the 
sea-level. Mr. Burr was in favor of the sea-level. He 
had been on the Isthmian Canal Commission of 1899 and 
he had voted then in favor of the lock canal with a 
height of eighty-five feet, but he also changed his mind 
and voted in favor of the sea-level canal, and those two 
by changing carried the majority of the consulting en- 
gineers in favor of the sea-level as against the lock canal. 

Mr. Burr attacked the stability of the Gatun dam. 
Mr. Hunter did not and neither did Mr. Parsons, the 
other American engineer favoring the sea-level canal. 
Mr. Burr's attack was based on this ground. He said 
that the foundation of the dam was not proper to make 
the dam of a stable construction. The dam is to be 
seven thousand and seven hundred feet in length. Un- 
der five thousand feet of this length there is a founda- 



116 



THE PANAMA CANAL 



tion of twenty feet below the surface of the ground of 
what is called " indurated clay." It is really a soft 
rock like soapstone. It is a rock which, when exposed, 
does not yield to the water. There has been at Colon 
for thirteen or fourteen years an excavated dry dock 
of this material, the sides of which now are just as 
plumb and just as smooth as they were when it was 
constructed. But in the length of seven thousand and 
seven hundred feet, there are two depressions in this 
rock foundation that we have described, one eighteen 
hundred feet and the other nine hundred feet in length, 
which were probably the beds of old streams of the 
Chagres. In these depressions are clay and sand mixed 
— an impermeable material — running down to the rock 
from one hundred and fifty to two hundred feet. At 
the lowest part of the depressions two hundred feet at 
one point and two hundred and five feet at another is 
found a material of coarse gravel and sand, which is 
water bearing, so that when a pipe is sunk down into 
it two hundred odd feet the water comes up and has 
overflowed the pipe, I think in one case an inch and a 
half and in another case possibly two inches. Now 
that is thought by Mr. Burr to indicate that the founda- 
tion for the dam is not of the proper material, and that 
it will be unstable. It is said that the fact that under- 
neath that is water flowing is an indication that there 
is some connection with the river and that the water 
of the river must necessarily communicate with it. It 
is demonstrable that the water cannot communicate with 
the river, at least not near the dam, for the river is at 
sea level as far as Bohio, seven miles above, and this 
water comes out of the pipes some eight or ten feet above 
the level of the river. The water, therefore, probably 
comes from pockets in the neighboring hills. 



THE PANAMA CANAL 



117 



To begin with, the construction of earth dams has 
been a science in which marked improvement has been 
made during the last ten or fifteen years. The question 
of filtration of water has been studied with great care. 
Mr. Stearns, of Boston, who planned the Gatun dam, is, 
I suppose, the greatest living authority on that sub- 
ject. All earth dams which have been properly con- 
structed have proven generally to be rather better than 
masonry dams — certainly better than masonry dams 
constructed with earth and a core of masonry, because 
the union of the masonry with the core is not generally 
as successful as it should be. 

There are three ways of destroying a dam. The 
water may flow over the top of the dam and carry it 
away by working down into it as at Johnstown ; then 
it may percolate through the material of the dam in 
such a way as to carry away the material of the dam, 
the face of the dam falling over; and then it may, 
although there are very few instances of it, percolate 
under the dam with so much force as to carry away the 
material under the dam and up in front of the dam so 
that the dam falls into the cavern thus made, but it 
requires great pressure to do that. 

Now for the benefit of those who do not know what 
I did not know until I looked into the subject, the 
science of hydrostatics shows that the pressure against 
a dam of this character is in proportion to the height 
of the water, without regard to the volume of water, 
and whether you have a lake of thirty miles extent or a 
lake that only extends back a half a mile from the 
dam, the pressure is exactly the same, if the height of 
the water against the dam is the same. Now there is 
no danger at all — everybody admits that — of breaking 
over the top of this dam, which, according to the plan 



118 



THE PANAMA CANAL 



of construction, is fifty feet above the level of the water. 
There is no danger of breaking through the dam, which 
is a half-mile thick at the bottom and three hundred and 
seventy-four feet thick at the level of the water, be- 
cause it is practically possible to construct a dam with 
clay by sluicing so to make it absolutely impermeable. 
Then the question comes: Is there any danger from 
the percolation underneath the dam? As I have said, 
there is an impermeable blanket there one hundred and 
fifty to one hundred and sixty feet thick between the 
bottom of the lake and any water-bearing material in 
the ground underneath. How, then, can water from the 
lake penetrate under the bottom of the dam and not 
only percolate there but percolate with such strength 
as to carry away the material through which it perco- 
lates for a distance of half a mile? You have all seen 
a spring that comes up at the bottom of the mountains 
— when it first breaks out, a little sand comes with it, 
but afterwards there is no material. The water is 
clear and pure. So here even if water could escape, it 
would not have force enough to carry material upward 
under the toe of the dam. Mr. Stearns, by experi- 
ment, shows that even if the foundation in these de- 
pressions were only average coarse sand, through which 
water would flow, instead of impermeable clay and sand 
as it is, there would not flow from the surface of these 
depressions more than ten cubic feet a second across 
the whole twenty-seven hundred feet. That is a negli- 
gible quantity with no possible destructive force. 

I should say something with reference to the tonnage 
of the lock canal. Filling these lock cavities takes a 
good deal of water, and you have to have enough water 
in the lake so that you will not draw off in the dry 
season enough to reduce the depth of the lake water 



THE PANAMA CANAL 



119 



below what you need for navigation of vessels. After 
thirty-six or thirty-seven million tons of shipping have 
been passed through in a year — that is, at that rate 
per year — the water would be drawn so low by lockage 
during the dry season that there would have to be a 
reservoir constructed at Alajuela to keep water in re- 
serve which could be used to maintain the lake at proper 
level. Such a reservoir can be constructed for two mil- 
lions of dollars, and then the total tonnage which could 
pass the canal in a year would be about eighty million 
tons. When you consider that the Suez Canal began 
with about five million tons of shipping and has in- 
creased to about fourteen million tons a year, you will 
see, if you calculate it, that at the same rate of in- 
crease the tonnage would be about fifty million tons for 
this canal in the year 2000. I think we can readily 
postpone anxiety, therefore, as to its capacity for con- 
sideration of our great-grandchildren. 

The weight of this dam is sixty-three times the pres- 
sure against its face. The dam is larger than any dam 
in the world and larger in the proportion of resistance 
to the water than any dam in the world, and I should 
like for a moment to invite your attention to a map, 
showing the various earth dams now constructed and 
in use. This is the highest earth dam in the world [in- 
dicating]. It is in California on the east side of San 
Francisco Bay, and is called the San Leandro dam. 
The water here is ninety-five feet high. This dam hasn't 
such a height of earth as the Gatun dam, but the water 
level is higher and the water level among engineers is 
regarded as the height of the dam. You will observe 
the difference in the extent of the material used to hold 
back the water of Lake Gatun, as it is called, and San 
Leandro. Gatun dam is much larger. There is some- 



120 



THE PANAMA CANAL 



thing quite interesting about the San Leandro dam. 
That was about five miles east of San Francisco Bay, 
where they had an earthquake. It is, as I have said, the 
highest earth dam in the world, but it was not injured 
in the slightest and lost no water. The Pelarcitos dam 
in California has a water level of eighty-five feet, just 
the height of this Gatun dam. It is situated on the 
peninsula on which San Francisco is located. The 
earthquake slid one great layer of earth and rock over 
another and cut off the water pipes leading from this 
dam to San Francisco. The movement followed the line 
of an old geological fault. The fault came through 
this end of the Pelarcitos dam [indicating] ; and yet, 
although the fault went right through the dam, there 
was not a drop of water lost. It shook the dam but 
the cracks were closed up by the weight of the material 
of the dam. I ought to add that the fear of danger 
from earthquakes to our canal works founded on the 
San Francisco earthquake, is shown by the effects of 
that earthquake not to be justified. Not only did this 
Pelarcitos dam — an all-earth dam — withstand the di- 
rect movements of the earthquake, but there was a dam 
just half a mile away from the line of fault, called 
the Crystal Springs dam, made of concrete masonry. It 
was something like one hundred and twenty-five feet 
high. The whole dam was pushed and thrust by the 
earthquake in such a way that when a man went t 
examine it it was perfectly possible to see how it had 
been moved. Yet it stands there to-day and holds the 
water of San Francisco. In other words, the earth- 
quake has shown that what an earthquake does is to 
shake down the buildings and the walls and the struc- 
tures that are not properly constructed, but that when 
they are constructed as they should be generally, they 



THE PANAMA CANAL 



are immune from destruction. On the Isthmus of 
Panama they occasionally have earthquakes, but there is 
to be seen in an old convent on the Isthmus a very flat 
arch that has stood for three hundred years. Colonel 
Hecker, who is present, told me that it was the wonder 
of engineers, and if there had been an earthquake of 
great force on the Isthmus of Panama, it is impossible 
to see how it could have stood, and yet it is there as liv- 
ing evidence of the fact that if we are going to count on 
earthquakes destroying the Panama Canal, we are 
merely allowing dreams to affect us, which ought not to 
influence practical men. 

Now, as to the danger from the locks. In the Soo 
Canal and approaching channels three times more ton- 
nage streams through the forty miles of the passage 
and the locks in nine months than passes through the 
Suez Canal in twelve months. Yet, in fifty years of 
operation at the Soo Canal, they have never had a dan- 
gerous or a destructive accident. The experts favor- 
ing a sea-level canal were greatly troubled lest the gates 
of the top locks might be destroyed by a vessel which 
failed to stop when it should and the water would flow 
out from the top. If the water began thus to flow, they 
insisted that there would be no way to stop it; that the 
water would flow out of the lake destroying everything 
before it and would drain the lake, which it would take 
a year to fill again. Mr. Hunter, of the Manchester 
Canal, was sure there was some danger of that sort and 
he detailed several accidents of the kind occurring at 
the Manchester Canal. Mr. Noble, the dean of Ameri- 
can engineers, who was for years in charge of the Soo 
Canal, and Mr. Ripley, who has been for twelve years 
in charge of that canal, testified that such accidents are 
most unlikely, especially with the double gates which 



122 



THE PANAMA CANAL 



they do not have either at the Soo or at the Manchester 
Canal. They say the accidents on the Manchester 
Canal occurred for lack of proper precautions, that 
snubbing the vessels in by lines so that they are not 
under the control of the engines but under the control 
of skilled employees on shore is the proper method and 
will insure slow and safe movement. 

To recur again to the comparison between the two 
types of canal, I ought first to say that while with small 
steamers the passage through the sea-level canal would 
be shorter than through the lock canal, it is not so with 
larger vessels after the business increases to say twenty 
vessels a day. Then the time of passage will be about 
the same in the two types of canal, or about ten hours. 
If the vessels increase in number and size, the passage 
through the lock canal will be less than in the sea level. 
This is due to the necessity for slow movement in the 
narrow channel of the sea-level canal and for tying 
up one vessel when two pass and to the speed of navi- 
gation possible in the lakes of the lock canal which 
more than compensates for the delay of two hours and 
twenty minutes in going up the locks and the same time 
going down. 

The time of construction for the lock canal I hope 
will not exceed seven years. Generously our engineers 
have added a year and made it eight. The time of the 
sea-level canal would be from fourteen to sixteen years 
and the chief engineer thinks twenty. The cost of the 
canal will probably be about one hundred and fifty 
millions. The cost of the sea-level canal would probably 
be about three hundred millions. Thus the lock canal 
is a better canal than the sea-level canal — of the size 
and type proposed — and can be constructed at half the 
cost and in half the time. 



A REPUBLICAN CONGRESS AND ADMINISTRA- 
TION, AND THEIR WORK FROM 
1904 TO 1906 

BOISE CITY, IDAHO, NOVEMBEB 3, 1906 

Ladies and Gentlemen: It is a great privilege to 
visit your beautiful City of Boise. It is a great pleas- 
ure to meet this intelligent audience. It is a great 
honor to meet you. I especially appreciate the coming 
of the fifty veterans who have marched from the Sol- 
diers' Home, showing that they still retain a deep inter- 
est in the history of that country which they did so 
much to save. But I never meet an audience like this, 
with your interested, upturned faces, without the deep 
regret that I can not occupy your attention in the way 
in which you evidently expect, because I fear that the 
result of my remarks before I get through will be 
rather soporific in its tendency. But I must discuss the 
issues of the campaign in my own way, and as some of 
the issues involve a discussion of rather abstruse points 
of law, I must ask your attention and your patience 
while I go on to discharge my duty and ask you as an 
audience to discharge yours. 

It is now two years ago, or nearly so, since the elec- 
torate of the United States decided, by an overwhelming 
vote, that Theodore Roosevelt should be President, and 
that there should be a Republican House and a Republi- 
can Senate. During those two years the Republican 
House and Republican Senate have had one long session, 
and the question now in determining as to the return of 
successors to those two Houses is, whether they have done 

123 



124 A REPUBLICAN CONGRESS 



anything or failed to do anything which should disen- 
title them to the confidence which you so overwhelm- 
ingly expressed in November, 1904, and that requires 
an examination of what they have done. 

One of the great features, one of the great historical 
facts, of the last five years has been the enormous in- 
crease in the wealth of this country and in its prosper- 
ity ; and in that increase in wealth have developed cer- 
tain evils, to remedy which has been the study of many 
men and many statesmen. Now, one of the easiest 
habits to fall into in discussing a situation, especially 
if you are in the opposition party, is to denounce every- 
thing, to hunt adjectives of a very intense quality and 
use them in describing conditions. 

One of the texts which have furnished the most op- 
portunity to the Democratic orators is the subject of 
trusts. Trusts have developed into an evil, but I think 
it would help us, and might help the Democratic ora- 
tors, to whom I refer, if they would define exactly what 
they mean by trusts, and explain what the evils are of 
which they are guilty, with a view to possibly reaching 
a conclusion as to how they ought to be remedied. But 
before we come to the question of trusts, or rather de- 
fining them, we may say that they are enormous aggre- 
gations of wealth used as capital, but so used as to de- 
prive the public of the benefit of the use of that capital 
to which they are entitled. We must all recognize that 
wealth used as capital is the basis of modern civiliza- 
tion, that the right of property is the most valuable 
right in building up our society, next to the right of 
personal liberty. The right of property develops in 
men, and developed in men in the Dark Ages, those vir- 
tues of self-restraint and providence upon which we 
build all the other virtues. The use of wealth, there- 



AND ADMINISTRATION 125 

fore, as capital, that is, to reproduce itself, is a virtue. 
That is what we have it for. The corporation — the 
artificial entity known to the law as the corporation — is 
the most important instrument in modern times in per- 
fecting and helping on the use of wealth as capital to 
reproduce wealth, because it offers the opportunity to 
amass the savings of many into one fund — one great 
fund — with which railroads and other great commercial 
enterprises can be carried on ; and the incident of the 
transfer of shares of stock is what enables so many mil- 
lions of people to have an interest in these immense 
corporations which they have helped to build up by con- 
tributing their modest savings. Any man who would 
discourage corporate enterprises, who would discour- 
age the saving of wealth in that way to be used in in- 
creasing the prosperity of this country, would be doing 
a greater harm to the poor man, to the wage-earner 
and to the small dealer than he would to the manager 
and the president of the great corporations. We must 
keep that in mind. Any man who would interfere with 
the prosperity of our country, considering what it is, 
would be an arch-conspirator against the people. 

Let us consider what an enormous development this 
country has had in the past five years. The manufac- 
turing plants alone have increased in value from nine 
billion dollars in 1900 to thirteen billions, or forty per 
cent, in five years. The products of those plants have 
increased from eleven and a half billions to fifteen bil- 
lions, or thirty per cent., showing that the capitalist 
in 1905 was not receiving as much for his money as he 
was in 1900. On the other hand, the wage-earners em- 
ployed in those factories in 1905 increased sixteen per 
cent, over the wage-earners pf 1900, but in the wages 
paid there was an increase of thirty per cent., showing 



126 A REPUBLICAN CONGRESS 



that the wage-earners in 1905 were receiving fifteen per 
cent, more per man on the average than they were in 
1900. With that kind of prosperity before us, we must 
be sure that the men who attempt to remedy the evils 
that have grown out of the organization of capital 
must be conscious of the necessity for preserving the 
use of capital, which is indispensable to our well-being. 
It will not do to destroy our whole structure just to 
suppress the evils which have arisen in its organization. 

What are the evils of trusts? For the sake of sim- 
plicity, we may divide the trusts into two kinds. One 
is formed by a contract, or loose arrangement, bind- 
ing together a number of independent firms or corpora- 
tions. They agree to divide the territory for their 
customers, or they agree in some other way that they 
will maintain the prices of the goods which they sell at 
a particular height. By so doing they eliminate com- 
petition, and while by the use of the corporation and 
the use of capital they reduce the cost of production, 
they still maintain the prices, and thus appropriate to 
themselves all the benefit of the reduction in the cost of 
production and deny it to the public. 

The second development is that all these firms or 
corporations are finally combined in one great corpora- 
tion that may embrace eighty or ninety per cent, of the 
producing capacity of the country for that particular 
commodity, and because they absorb so much of the 
producing capacity, they are able to deal with middle- 
men and retail dealers in this wise. They say to them : 
" Here, you must sign a contract with us by which you 
shall not sell below a certain price, and by which you 
shall deal with us exclusively, because if you don't com- 
ply with such a contract, if you don't sign such a con- 
tract, when the demand for our goods is active, and 



AND ADMINISTRATION 127 



when you want more than you can get from these inde- 
pendent firms who are furnishing them, we will decline 
to sell you these goods except at a much higher price." 
In that way they coerce the retail dealers and the mid- 
dlemen into dealing with them exclusively, and in that 
way they drive out competition. This subject had con- ') 
sideration some twenty years ago or more. In the second 
Congress of Mr. Cleveland's first administration — a 
Democratic Congress — they took a great deal of evi- 
dence on the subject. They said trusts were increas- 
ing, and that they ought in some way to be restrained, 
but the committee thought and thought and finally said 
that they gave up the problem and turned it over to the 
next Congress, which was then known to be Republican. 
That was in 1889. In 1890 the Republican Congress 
came in, and passed the Sherman anti-trust act. You 
must bear in mind that Congress can not deal in trade 
inside of a state, but in interstate trade, that is, trade 
across state lines, and that limitation sometimes inter- 
fered very much with the efficiency of Congressional 
legislation on this subject ; but Congress passed this act, 
which in its first section denounced as a crime and pro- 
vided for restraint by injunction, any combination in 
restraint of interstate trade. The second section de- 
nounced and provided for restraint by injunction a 
monopoly of interstate trade. There were other sec- 
tions, but substantially that was the act. It was not as 
full in detail as it might have been. It needed a great 
deal of generous construction to make it operative and 
so it was brought into the courts. The first case 
brought up was the sugar trust case. There the gov- 
ernment attempted to enjoin the absorption of a lot 
of sugar-refining companies so that the plants would in- 
clude about ninety per cent, of the producing capacity 



128 



A REPUBLICAN CONGRESS 



of the country, but the court said that that was not in- 
terstate trade; that those were only factories in differ- 
ent states, and the mere fact that the refined sugar 
which was to be made by those factories might sub- 
sequently go into interstate trade, and thus the union 
would enable them to control that business, did not make 
the products of the factories interstate trade, and so 
the bill was dismissed. Mr. Olney, the attorney-general 
of Mr. Cleveland, was so discouraged by that that he 
thought it was necessary to relegate the whole matter to 
state courts and to state legislation. But Mr. Har- 
mon, who succeeded him, under Mr. Cleveland, went into 
court and obtained two decisions against railroads 
which were interstate. Then there came a decision in 
the Addyston Pipe case. In that case there were eight 
or nine different corporations manufacturing cast-iron 
pipe in different states, and they divided up the terri- 
tor} T . They not only divided up the territory in which 
they should sell their pipe, but they also had an agree- 
ment by which, when bids were invited by any town for 
the sale of cast-iron water pipe, they had a little meet- 
ing — a little auction in advance of the bidding — and 
they decided among themselves, by bidding among them- 
selves, which one should have the contract, and then hav- 
ing decided which one should have the contract, they 
arranged the matter so that the competition should ap- 
pear to be very active. The stenographer of the head 
of that concern turned state's evidence and gave the 
whole matter away to the courts. The result was that 
they were enjoined and the Supreme Court sustained it, 
on the ground that the trade in cast-iron pipe was 
across state lines, was interstate trade, and that there 
was a combination in restraint of interstate trade. 

The most important decision, however, was one ob- 



AND ADMINISTRATION 



129 



tained in Mr. Roosevelt's first administration, called the 
Northern Securities Case. There a corporation was or- 
ganized in New Jersey to hold the stock of the Great 
Northern and the Northern Pacific Roads, with a view 
to a common management. They were competing rail- 
roads in interstate trade, and the question was whether 
that New Jersey corporation was a combination in re- 
straint of interstate trade. The Supreme Court held 
that it was, by a divided court, and that prevented 
what might well have gone on, had the decision been 
otherwise, the union of all the railroads in this coun- 
try under one head. It did not make Mr. Roosevelt 
popular in Wall Street. The number of trust suits 
brought in Mr. Harrison's time was six. The number 
of trust suits brought in Mr. Cleveland's time was 
seven; the number of trust suits brought in President 
McKinley's time, during the Spanish War, was but 
three. The number of trust suits, that is, suits under 
the anti-trust law, original proceedings, under Mr. 
Roosevelt, has been sixteen. The results are that the 
Northern Securities Trust was dissolved, the paper 
trust has been dissolved, the cast-iron pipe trust has 
been dissolved, and there are others now in the course of 
litigation. In pursuing this statute it became neces- 
sary for Congress to pass a number of auxiliary 
statutes. One was the creation of the Bureau of Cor- 
porations under Mr. Garfield. He has investigated a 
great number of the corporations and a great number 
of the trusts, and has found, to use the expression of 
Attorney-General Moody, that the greatest instrumen- 
tality in the maintenance of trusts is discriminating 
rates upon railroads. When a trust has enormous 
freight to give to a railroad, it says to the railroad: 
" If you do not give me discriminating rates, secret re- 



130 A REPUBLICAN CONGRESS 



bates, against my competitor, I will give my freight to 
another railroad." The railroad yields, sometimes will- 
ingly, and sometimes unwillingly, but it generally yields. 
That brought to Mr. Roosevelt's attention the neces- 
sity for a change in the interstate commerce law, a 
change which should put into the Interstate Commerce 
Commission greater power than it ever had before. But 
it was really only an advisory board. It could tell the 
railroad company what was an unreasonable rate but it 
could not tell the railroad company what was a reason- 
able rate. It might make an order against the rail- 
road company, but the railroad company was not 
obliged to obey it. So the whole matter had to be 
brought into court and the whole case gone over again. 

The rate bill contained two provisions, insisted on by 
Mr. Roosevelt, namely, that the Commission might fix a 
reasonable maximum rate, and also that its orders 
should go into effect and be obeyed by the railroad com- 
pany. That rate bill passed the House and the Senate, 
and was signed in June, and by its terms was to go into 
effect the first of September. What was the result? 
Between June and September there were more notices 
filed by the railroad companies to reduce rates than had 
been filed in the twenty years previous under the inter- 
state commerce law. On the 29th of August, two days 
before the act went into effect, there were filed in the 
Interstate Commerce Commission office five thousand 
notices to reduce rates by the railroad companies — 
voluntary notices. The Standard Oil Company was in- 
dicted in I don't know how many suits for rebates re- 
ported by Mr. Garfield, and before those suits came to 
trial the Standard Oil Company had rearranged their 
rates. In New England, for instance, they had so ar- 
ranged their rates that no independent producer of oil 



AND ADMINISTRATION 



131 



could go into that country at all. They changed that 
in view of their indictments, and to-day the independent 
oil producers are going into the New England terri- 
tory, and the price of oil has fallen. 

The tobacco trust has been indicted as a trust under 
the anti-trust law. It had proceeded on the theory 
which I suggested some time ago. It went to its mid- 
dle men and to the retail dealers and said : " Here, you 
must deal with us exclusively. You must charge our 
prices or we will not let you have any licorice," licorice 
being the basis of most manufactured tobacco. When 
under this indictment they were charged with violating 
the anti-trust law, they announced by advertisement 
that they had withdrawn their discriminating rates that 
had been insisted upon in the contracts, and would sell 
to the independent companies at the same price at which 
they would sell to the trust companies. 

The New York Central Railroad has been indicted 
and convicted of granting rebates to the sugar trust, 
in order that that might compete with the beet-sugar 
factories in Michigan. 

Now, I mention these various incidents happening 
within the last two years, or eighteen months, merely to 
show you that by the activity of Theodore Roosevelt, by 
his determination to have these laws enforced, by his de- 
termination to ask Congress that if these laws can not 
be enforced to have laws which can be enforced, the 
fear of the Lord and the fear of the law has been put 
into the hearts of the managers of railroad companies 
and the managers of trusts. 

Under Mr. Harrison's administration there were 
seventeen original proceedings brought under the in- 
terstate commerce law; under Mr. Cleveland thirty- 
two; under Mr. McKinley thirteen; and under Mr. 



132 



A REPUBLICAN CONGRESS 



Roosevelt about seventy-five. The truth is that it has 
been demonstrated in the last year that it is possible, 
through the instrumentality of the courts and through 
statutes properly directed, to suppress these evils, if 
time is taken and energy and vigor put into the pros- 
ecution. 

But our Democratic friends say we must destroy the 
trusts, we must not regulate them — we must not simply 
suppress the evils that occur in their operation. That 
sounds well rhetorically, but when you come to examine 
it, you will find that it is a very serious question. Why 
should those great business enterprises be destroyed? 
Why should you take out of the general prosperity of 
the country that which has furnished the pay-rolls and 
an enormous wage fund which has brought about the 
prosperity that we are now enjoying? What we ought 
to do is to regulate them in order to suppress the 
evils of their operation, but to allow them to go on and 
contribute to the general welfare of this country. 

But the Democrats say the way to destroy the trusts 
is to revise the tariff, with a view to taking out of the 
tariff protection those things which the trusts manufac- 
ture. That sounds attractive, but when you examine 
the schedules that go to make up this protective tariff 
of ours, you will find that it is absolutely impossible to 
segregate any one commodity from this schedule, made 
up with the greatest care, the items in which are inter- 
dependent on each other. If you take out one item 
you will find that you break down the whole system, 
and you will find that you will not only injure the 
trusts, but you will injure a great many innocent manu- 
facturers who are not a trust and who are doing a 
legitimate business. In other words, it is a mathe- 
matical proposition that can not be worked out in that 



AND ADMINISTRATION 



133 



way. It is true that if you were to abolish the pro- 
tective tariff system altogether, and have free trade, 
it would be less easy for anybody to absorb an entire 
business in a trust, because he would then have to ab- 
sorb the producing capacity of foreign countries. In 
other words, the protective tariff obstructs foreign com- 
petition and in so far as it does that it enables trusts 
the more easily to form. But then the question which 
you have to answer is this: Do you desire to destroy 
your protective tariff system entirely merely to destroy 
the trusts, or is it not better to destroy these evils of 
trusts by direct legislation and by compelling them to 
obey the law, and still continue the protective tariff sys- 
tem that such a great majority of this country have 
determined shall be the basis of our commercial struc- 
ture? We know what a change of the tariff means. 
We knew it in Mr. Cleveland's time, when the Wilson- 
Gorman Bill passed. We know the disaster which fol- 
lowed, and which necessarily follows with a change of 
the rates of duty upon the articles that enter into our 
consumption. The tariff is something upon which busi- 
ness depends. If you change it you are certain to dis- 
turb the calculations of business men and to bring about 
financial disaster. Therefore, it seems to me that the 
method pursued by Mr. Roosevelt is much more logical, 
much safer and much less dangerous. 

Reference was made by the Chairman to the meat 
inspection law. That was a law against which at the 
time a good deal of criticism was directed. The in- 
vestigations which were made — the reason for recom- 
mending the passage of the law — revealed a condition 
in respect to the taking care of our meat in the Chicago 
market that certainly was most revolting, but by the 
passage of the law, by the securing of the most thor- 



134 



A REPUBLICAN CONGRESS 



ough inspection by the inspectors of Uncle Sam, the 
whole business has now been put upon a sound basis, so 
that when in Ohio or in Washington we get beef, either 
in the can or in the carcass, which comes across state 
lines and bears the imprimatur of Uncle Sam's inspect- 
ors, we know it is edible and is certified to by men who 
are capable of knowing. And now what they are try- 
ing to do is to put the business on a perfectly sound 
basis, and though for a time it may have injured that 
trade, it has given to all those interested in stock- 
raising a business now that they can be certain will be 
permanent. 

So too the pure food law. That was passed at the 
instance and by the pressure of your Senator Heyburn. 
That provides for keeping out adulterants from medi- 
cines and from other things used as beverages and 
foods. They too now bear the mark of the inspector of 
the United States, and therefore carry on their face a 
certificate of their healthfulness. So too the denatured 
alcohol bill. That was a bill providing that alcohol, 
which was to be used in the arts, to be used for lighting 
and heating, and alcohol can be used most cheaply for 
that purpose, should not pay the enormous tax that 
alcohol has to pay when it goes down men's throats. 
In order to prevent its not paying a tax and then going 
down men's throats, they have to mix something with it 
that no man can drink. 

These four acts are most important in promoting the 
welfare of the people, and they are especially significant 
in this that they were all opposed most bitterly in their 
passage by the most powerful private interests of this 
country — the rate bill by all the railroads, the meat in- 
spection bill by the packers of Chicago, Omaha and 
Kansas City, the denatured alcohol bill by the Standard 



AND ADMINISTRATION 



135 



Oil Company, and the pure food law by a great many 
quacks ; and in spite of that opposition, in spite of the 
bitterness with which the laws were attacked by all of 
them, they went through both the House and the 
Senate, and were signed by the President in one 
session. 

Then there was the act fixing the type of the Panama 
Canal ; the statehood act which provided that Oklahoma 
and Indian Territory should come in as a state, and 
that New Mexico and Arizona should either come in as 
one state, or wait until they were large enough to come 
in as two states ; the consular act which put the con- 
sular system on a proper basis, on a merit system, and 
took it out of politics. 

But as to the four acts that I first mentioned, I 
wish to emphasize the fact that they were bitterly op- 
posed by private interests, by what Mr. Bryan calls the 
predatory wealth of the country. I wish to do that 
because I wish to call your attention to the fact that 
this Congress was the greatest Congress since the war 
because of the importance of the legislation which it 
passed. And yet Mr. Bryan and other Democratic 
statesmen have the audacity to ask the people of this 
country, after praising Mr. Roosevelt's policies, to send 
back a Democratic House to uphold his hands, and a 
Democratic Senate to uphold his hands, because a Re- 
publican Senate and a Republican House can not be 
trusted. And yet the record is as I have stated, that 
these great acts, in the face of the opposition of preda- 
tory wealth, if you choose to call it such, went through 
both the Senate and the House. They went through 
the Senate, which it has been charged is the home of 
special interests. The rate bill which was to die in that 
body came out of it a better act, a more drastic act and 



136 A REPUBLICAN CONGRESS 



a more comprehensive act — a more efficient act than 
it was when it passed the House. 

Now Mr. Bryan says to send back to the President, 
apparently as a Christmas present, a Democratic 
House. What does he mean by that? What is a 
Democrat to-day? Is he the follower of William Ran- 
dolph Hearst of New York? Mr. William Randolph 
Hearst says he is a protectionist. Is he a follower of 
Alton B. Parker, the candidate whom the Democrats 
voted for at the last election? Mr. William Randolph 
Hearst says that Mr. Parker is a political cockroach. 
Is it Mr. Bryan? Mr. Bryan is in favor of govern- 
ment ownership of railroads. He wishes us to issue 
fifteen billion dollars worth of bonds to buy all the rail- 
roads and run them by the government. Think of the 
immense power which anybody in the Presidency would 
wield with all the railroad men of this country at his 
beck and call. But is a Democrat in favor of that? 
If he is, then it means the denunciation of Senator 
Bailey of Texas, and John Sharp Williams, the leader 
of the Democratic House, who say that they will have 
none of government ownership. Then there is another 
gentleman in Massachusetts who has come forward. 
He has wiped out the old Democrats, and he bears the 
significant name of John Buttin Moran. There is an- 
other man in California on the Democratic ticket who 
is going about California denouncing William Ran- 
dolph Hearst, who is running on the Democratic ticket 
in New York. When Bryan says, " Send back a Demo- 
cratic House," just tell me what the quality of the mem- 
bership of that House under this chaotic state in the 
Democratic Party is to be. It is a subject of great re- 
gret that the Democratic Party has fallen into this 
condition. It ought to be to every lover of this coun- 



AND ADMINISTRATION 



137 



try, because we are a popular government that must 
depend for our safety and the carrying on of the gov- 
ernment on the maintenance of two great parties hav- 
ing solidarity, having a definite purpose, and each 
having the patriotic purpose to conserve in the govern- 
ment that which is best — both parties having a sense of 
responsibility, so that in a Presidential contest when we 
may differ as to economic policies, the members of each 
party may be confident that if the other party comes 
into power the government will still be conducted with 
patriotism and with a view to the benefit of the whole 
people. But when you find a party that has permitted 
itself to be carried to extremes, without any sense of re- 
sponsibility on the part of the would-be leaders, I am 
sorry to say that it does not come up to the standard 
of the great historic Democratic Party that we knew, 
with its conservative element to keep it straight and to 
keep it out of the quagmire of demagoguism, and we 
have to depend, I am sorry to say, upon the Republican 
Party alone. 

Two years ago Theodore Roosevelt was a candidate 
for the Presidency. What I am about to say is apro- 
pos of Mr. Bryan's admission now that the policies of 
Mr. Roosevelt are such that they ought to be upheld 
by somebody. Of course we differ as to who ought to 
uphold them, but he thinks they ought to be upheld by 
somebody. Two years ago Mr. Roosevelt was a candi- 
date, and the song that was sung in one note by the 
Democratic orators from the Atlantic to the Pacific 
Ocean was the unfitness of Theodore Roosevelt to act as 
President of the United States. They said that he was 
a swashbuckler ; that he was going about with his sword 
ready to cut somebody's head off ; that he was looking 
for a fight; that he was dragging his coat-tails on the 



138 A REPUBLICAN CONGRESS 



floor in order that somebody might step on them; that 
he had a chip on his shoulder, looking around in order 
that he might show the great power of this country, and 
what he could do if he were President, and therefore 
that he was not to be trusted in conducting the foreign 
affairs of this country. I do not exaggerate. I have 
heard those statements and read them in the Democratic 
papers time and time again. They said he was a 
usurper, a violator of the Constitution; that he would 
carry this country to perdition if you elected him to the 
Presidency and gave him free scope. What has hap- 
pened in those two years? We haven't quite got to 
the perdition that they predicted, though President 
Roosevelt is maintaining the army and navy so that 
we are not pusillanimous ; so that we are able to look 
other nations in the face and not take from them insult 
of any kind; yet, on the other hand, he has pursued 
such a policy as, with the prestige which the nation has 
and with the prestige which he has acquired as the head 
of this government before the nations of the world, to 
put an end to one of the greatest of modern wars, the 
bloody war between Japan and Russia by the signing 
of peace at Portsmouth. He was able, not less than six 
months ago, to bring Guatemala and San Salvador, two 
republics of South America that were engaged in a most 
bloody contest — to bring their representatives on the 
deck of an American warship, and there have them sign 
a protocol of peace. He was able, by the mere force of 
his character, by his prestige as President, as the peace- 
loving President, to bring about a truce, by a letter 
which he sent to the Cubans, and to send back peaceably 
to their farms the men who were in arms. He sent Sec- 
retary Root to South America to convince the republics 
of that continent that we are not land-grabbers ; that 



AND ADMINISTRATION 



139 



we are not seeking to exploit them for our benefit; that 
we are merely trying to secure fraternal relations with 
them and merely saying to them, " We shall stand by 
you to see that you do not suffer in your independence 
from the possible aggression of European powers." In 
Santo Domingo in the West Indies he found a dissolu- 
tion of the bonds of society; they had had an election 
and then a revolution, and then an election and then a 
revolution, until they had worn everything out ; and 
they said, " Can not you come in and help us ? " The 
President concluded a treaty, subject to confirmation 
by the Senate, by which we became the receiver of that 
island in a sense and collected its customs ; but the Sen- 
ate, or rather the Democratic part of the Senate which 
prevented the Republicans from having a full two- 
thirds vote necessary to the confirmation, was afraid 
that four or five of their members might vote for it, so 
they caucused to prevent the sanction of the treaty, and 
it is therefore still hung up in the Senate. Meantime, 
the President, at the instance of the President of the 
Santo Domingo Republic, has sent to that island per- 
haps a dozen American collectors of customs, under an 
arrangement by which they pay over 55 per cent, to 
run the government, and deposit the remaining 45 per 
cent, in a New York bank to meet their obligations to 
European countries, which were very heavy — heavier 
indeed than they ought to have been. The 45 per cent, 
has heaped up a million and a half dollars gold in a 
New York bank where it has induced the bankers of 
New York to arrange for a refunding of the debt, and 
soon it is hoped that with the passage of the treaty 
that country will be put upon its legs again. Mean- 
time they have had another revolution, and through the 
intervention of our navy and our collectors of customs 



140 A REPUBLICAN CONGRESS 



that revolution too has come to an end. The result is 
that this swashbuckler, this gentleman that was going 
to carry us to perdition, instead of being what was 
prophesied by our Democratic prophets has turned out 
to be the most successful peacemaker that ever sat in 
the Presidential chair. 

Now one word as to our colonial policy. We got into 
the Philippines against our will. That is, Dewey won a 
victory there and after he had won that victory we 
could not get out because we had a dilemma before us of 
three horns. The first one was, Should we turn the 
islands back to Spain? When we had invoked the aid 
of the Filipinos to assist us in turning the Spaniards 
out, it would not have been fair for us to turn the 
Filipinos back to the tender mercies of Spain, with whom 
we had fought with the Filipinos on our side. The 
next horn on the dilemma was, Should we turn these 
islands over to the Filipinos? While we were there the 
Filipinos had a government under Aguinaldo of five or 
six months, — perhaps a little longer, — and there never 
was in the history of those islands, in the palmiest days 
of Spanish tyranny, such corruption, such tyranny, 
such a want altogether of a decent government, as there 
was under Aguinaldo, demonstrating to those who were 
there that it was absolutely impossible to turn the 
islands over to that government, or to those people at 
that time. The other horn of the dilemma was that 
we should take the islands ourselves ; that we should do 
for the Filipinos as we would if they were our children, 
exercising a sacred trust for them; that we should treat 
the islands as for them alone, and should educate them 
and gradually train them up by practice in self-govern- 
ment until possibly at the end of that time they could 
stand alone, and that is the theory that we are attempt- 



AND ADMINISTRATION 



141 



ing to carry out. We have instituted a system of edu- 
cation there, by which to-day there are in the public 
schools a half million of Filipino children, reading, writ- 
ing and reciting in English, and to-day in the islands, 
as a result of that education, the English-speaking 
people outnumber those who use Spanish. Mr. Bryan 
says that this is an outrage — not the education, he ap- 
proves the education — but that it is an outrage that we 
should hold these islands at all. Well, of course, that 
depends upon the question whether or not they are fitted 
for self-government. While I was in the islands there 
were some intelligent Filipinos who came to me and 
wanted to establish a party, by peaceable means, called 
the party of independence, and they asked me to give 
them permission to do so. I said, " You can establish 
it, if you want it. I can not approve it ; it is not neces- 
sary that I should, and I do not think it is wise now, and 
I would advise you to delay." They came to me with 
a written argument on the subject of the fitness of the 
Filipinos for self-government. They said that they 
were convinced that the Filipinos were fit for self-gov- 
ernment, because they had counted up the number of 
offices in the provinces, the municipalities and the cen- 
tral government, and they had also counted up the num- 
ber of educated Filipinos able to fill those offices, and 
they found that the number of persons to fill offices 
was at least double that of the offices. Therefore, they 
said they could have a shift, and when the country got 
tired of the first shift they could put in a second shift, 
and so they were fitted for self-government. This same 
committee came before the Congressional delegation that 
went out there last year, and they explained why they 
were fitted for self-government in this wise. They said, 
" There are seven per cent, of us who speak Spanish 



142 



A REPUBLICAN CONGRESS 



and who are educated, and we are fit for self-govern- 
ment ; we are a governing class. In addition to the 
governing class there are ninety-three per cent, that are 
totally ignorant. They are like children. They are a 
serving class, an obedient class, and in that way with us 
as a governing class and with them as a serving class, 
we will be happy ;" and one of them suggested that they 
might bring in some Chinamen as an animal class who 
might do the work. Now that reveals the conception 
that the educated Filipino has of popular government. 
His idea is not to educate the lower class and educate 
them so that they will have a healthy public opinion, 
without which you can not have a popular government 
at all. Their idea is to keep that class as a serving 
class. If the Democrats came into power and let the 
islands go, they would have to take them back again in 
course of time. They would be doing just exactly what 
we are doing — struggling patiently to educate these 
people on the way to self-government. They are a fine 
people in many ways. They are a Christian people. 
They are the only Christians in the Orient, and that we 
owe to the Spanish Catholic friars. They are the only 
Malays that are Christians, and being Christians they 
look toward Europe and America for their ideals. The 
greatest encouragement that anybody interested in that 
race can have is the eagerness with which the ignorant 
tao — that means a common man — is anxious to have his 
children go to the schools to learn English. That in- 
dicates that they do want something better and some- 
thing higher. The difficulty we have in dealing with 
them is from the continual statements by the Democrats 
on this side — especially by Mr. Bryan — that we are go- 
ing to leave the islands just as soon as the Democrats get 
in. What effect does this have upon us? It deprives 



AND ADMINISTRATION 



143 



us of the earnest support of the conservative people of 
the islands who will be glad to have us stay, because if 
in two years there is to be a change and the islands are 
to be left derelict on the ocean, and this serving class 
is to be in control, then those who favor the Americans 
during the time of the American government will not be 
popular with this class which is to govern, and therefore 
it keeps them all in a state of unrest and uncertainty. 

The next subject to which I wish to call your atten- 
tion is that which has been made an issue in some dis- 
tricts, the attitude of the President and Congress to- 
wards the laboring men of this country and the labor 
unions. In the first place no one recognizes more fully 
than the President the absolute necessity that there is 
for the organization of labor. What could a single 
laboring man do in the necessary controversies that 
arise between labor and capital with respect to the 
adjustment of wages and the division of the product of 
a union of capital and labor against his wealthy em- 
ployers, especially when that employer is a great corpo- 
ration? It may be that in the end wages of labor are 
determined by the relation of supply of labor to the 
demand for it, but certainly in the long periods of 
transition, between good times and bad times, and bad 
times and good times, readjustment of wages on a fair 
basis, considering the times, is very much affected by 
the power that the laboring men may gather for them- 
selves by united effort to increase their wages on a rising 
market and to prevent the too sudden decrease of their 
wages on a falling market. There is a great deal of 
human nature in man, and employers when they come to 
economize their expenditures in more stringent times are 
apt to look to their pay-roll, which constitutes their 
chief expenditure, as the place where they can most 



144 



A REPUBLICAN CONGRESS 



easily effect a reduction. On the other hand, when busi- 
ness is improving and profits are increasing they are 
loath to share these profits with the men who do the work 
and without whose labor no profit could be had. 

Hence I say again that the organization of labor into 
labor unions is absolutely essential to the welfare of the 
laboring man in the protection of his legitimate inter- 
ests ; and Theodore Roosevelt is the last man who would 
lay any obstacle in the way of the efficiency of these or- 
ganizations to accomplish their legitimate purpose. He 
is himself an honorary member of the Brotherhood of 
Locomotive Firemen, and he has taken pains at all times 
and in every public utterance of his where it was at all 
relevant, and in his recommendations to Congress, to 
manifest his interest in the welfare of the laboring men 
of this country and his earnest desire to see that they 
do not suffer from the aggressions of capital and that 
the law makes every provision for the defense of their 
interests and the betterment of their welfare. 

Having heard from the complaints of the laboring 
men that the eight-hour law was not efficiently adminis- 
tered as to contractors in the war department and in 
the navy department and in other departments of the 
government, he instituted an investigation and issued 
most stringent orders which have now put that law 
into thorough operation. Having found that the rules 
with reference to the recovery of damages from rail- 
roads for injuries to their employees, suffered through 
the negligence of the railroad companies or their fellow- 
servants, were not as uniform and not as equitable as 
they ought to be, he recommended the passage of an em- 
ployers' liability act for interstate commerce railroads, 
which passed at the last session of Congress. Having 
found that in a lower court there was some doubt about 



AND ADMINISTRATION 145 



the proper construction of the law with reference to 
the use of appliances on railroad cars which should pre- 
vent injuries to brakemen and other employees concerned 
about cars, and that a case had been lost by an em- 
ployee thus injured, in one of the Federal courts of Cali- 
fornia, and that the employee was unable for want of 
means to take an appeal, he directed his Attorney-Gen- 
eral to take up the ease — though a private one — as a 
government case in order to test the validity of the de- 
cision of the court below against the workingman. And 
this appeal at the instance of the government resulted 
in a complete reversal of the decision of the court below, 
a construction of the statute favorable to workingmen, 
and a judgment for the employee. 

Complaint was made to him by the great labor or- 
ganizations, the Brotherhood of Locomotive Engineers, 
the Brotherhood of Locomotive Firemen, and the 
Brotherhood of Railway Conductors, that the issuing 
of injunctions by the lower Federal courts had at times 
been abused. They pointed out to the President that 
there were instances in which legal strikes had been 
carried on without any violation of the rights of the 
employers, and that injunctions had sometimes issued 
on the petition of the employers, and at the instance of 
their attorneys, on misstatements of the facts, against 
a striking workingman without any notice or oppor- 
tunity to demonstrate the lawfulness of their proceed- 
ings, and that in such cases it had not infrequently 
happened that although the strikers were pursuing 
legal methods, and although the strike was in every way 
within the law, nevertheless they were discouraged and 
gave up the controversy. 

The President conferred with the heads of these or- 
ganizations, with the Attorney-General, and after a 



146 A REPUBLICAN CONGRESS 



time agreed with them that the best way of avoiding 
difficulty was to pass a statute requiring that notice 
should be issued in the granting of such injunctions. 
This indeed returned to a practice which had been re- 
quired by statute in the Federal courts some fifteen or 
twenty years before. A bill called the Gilbert Bill was 
introduced in Congress by Mr. Gilbert of Indiana, to 
require that no injunction should issue against a de- 
fendant in such cases until he had a chance to be heard 
in a court and explain just exactly what he intended 
to do and to show that he did not intend in any way 
illegally to infringe upon the rights of his employers. 
The Gilbert Bill was introduced, but then Mr. Gompers, 
representing the Federation of Labor, came before the 
committee and said that the bill was not satisfactory to 
him. He went before the President and the Speaker, 
Mr. Cannon, and demanded not the Gilbert Bill, but 
demanded that all injunctions should be abolished and 
that a bill should be passed which I am about to de- 
scribe. 

The first section of the Gompers Bill provides that 
no Federal court shall have the power to enjoin men 
from unlawfully injuring the business of another in a 
labor dispute. The claim made by Mr. Gompers and 
those who support the bill, is that under ancient prac- 
tice in equity injunctions issued only to protect prop- 
erty, and business is not a property right, and that for 
the lower Federal courts to protect a business from un- 
lawful injury is a judicial usurpation. The Supreme 
Court of the United States has decided that injunctions 
may properly issue to protect either a property right 
or a right of a pecuniary nature. The issue therefore 
made by Mr. Gompers and his associates is shortly 
stated thus : Whether the business that a man has built 



AND ADMINISTRATION 



147 



up, the business that he is doing in manufacturing or 
otherwise, including as it does the good will, may be 
injured unlawfully by laboring men in a labor dispute, 
and they be exempted from any interference with such 
unlawful action by the writ of injunction, so that all he 
can do to protect his business in a private suit is to bring 
a suit for damages and to have the matter tried before 
a jury to determine the amount of the damages. This 
is of course a remedy which everyone will recognize as 
wholly inadequate to protect him in his business right. 
I am willing to submit to any body of laymen the ques- 
tion whether a man's business, involving his . good will, 
that which by advertising and lawful and honest deal- 
ing he has made a valuable asset to him, so it passes 
to his next of kin when he dies, and may be sold by his 
administrator, is not a right of a pecuniary nature 
which ought to be protected by injunction just exactly 
as any property right ought to be. All the courts 
have decided that this is the case, and the charge that 
the lower Federal courts or the state courts, and there 
are a great number who have held that injunctions may 
issue in such cases, have usurped their authority, falls to 
the ground. In this view the President declined to 
recommend the passage of a law abolishing the writ of 
injunction in labor disputes, and he did so on the ground 
that to do so would be to place laboring men who were 
violating the rights of others in a special class enjoying 
immunity from the remedies of the law. 

A farmer might unlawfully injure a man's business, 
a physician might injure another man's business, a law- 
yer might injure another man's business, and against 
them the writ of injunction would issue, but this bill 
contemplated that it should not issue in such cases 
against a laboring man. The President is against 



148 A REPUBLICAN CONGRESS 



privileges to any special class and so was against that 
bill. Therefore he told Mr. Gompers that while he 
strongly favored the giving of notices in such cases, 
he would certainly invoke as against lawless working- 
men the same writ of injunction that he would invoke 
against lawless capitalists; that he was in favor of a 
square deal to all and special privileges to none. 

The second section of the Gompers bill in effect 
legalizes boycotts and blacklisting and forbids their re- 
straint or punishment. These are cruel methods, taken 
sometimes by employers, sometimes by the employees, to 
effect purposes which in themselves may be laudable, 
but the method used is so oppressive and cruel that the 
commission appointed by the President to investigate 
the anthracite coal strike in Pennsylvania, upon which 
was a president of a labor union, reported unanimously 
that boycotts and blacklisting were cruel and lawless 
and should not be supported in a civilized society and 
that they ought to be denounced in the law. I ask you 
whether under these circumstances a bill which in effect 
legalizes both ought to receive the votes of members of 
Congress ? 

In the hearing before the committee, Mr. Gompers, 
as representative of the American Federation of Labor, 
was opposed by the representatives of the great labor 
unions of the railroads, to which I, have referred, and 
in the statement before the committee it was repeatedly 
stated that there had never been a President who had 
shown as much sympathy with the laboring men and with 
the labor unions as Theodore Roosevelt ; so much active 
sympathy and so great desire not to talk about them, 
but to do things in their behalf. 

Now it is said that this Congress has acted injuri- 
ously to labor in regard to the Panama Canal and the 



AND ADMINISTRATION 



149 



employment of labor. The eight-hour law applies to 
work done directly under the government. The At- 
torney-General, therefore, held that it applied to the 
day laborers on the Isthmus. Congress amended the 
law so that it should apply only to American laborers 
on the Isthmus and not to aliens. The Isthmus of 
Panama is in the Tropics. It is impossible for an 
American laborer to work there except under cover, 
and all the American labor possible for us to get we 
use. But it is all skilled labor, engineers, machinists 
and other skilled mechanics. The common labor the 
American finds impossible to do because of the terror of 
the tropical sun and the tropical torrents of rain that 
fall during the rainy season. We are therefore limited 
in our employment of common labor to those men who 
can stand the tropical heat in their day's work and we 
are now using tropical negroes from the West Indies on 
the ditch. These men have nothing of the industry of 
the American workingman. Instead of beginning their 
work on Monday morning and working industriously 
and with effect until Saturday night, they do not begin 
work until Tuesday and they lay off work on Friday, 
and it is very rare that we can get more than four days 
a week out of six from them. If you pay them twenty 
per cent, more wages they will work just twenty per 
cent, less, for they want only to feed themselves and 
to enjoy their leisure. 

Now the eight-hour law in the United States affect- 
ing the government is a law passed as a type and 
standard for other employers for the purpose of encour- 
aging a reduction in the hours of those workingmen 
who are industrious and put in eight hours of work for 
six days in the week, so that out of the remainder of 
the twenty-four hours each day they may rest, may 



150 A REPUBLICAN CONGRESS 



have time for recreation and for intercourse with their 
families and for such reading as they may be willing to 
do. The principle of such law and the reasons for 
recognizing it have not the slightest application to 
laborers such as I have described, the tropical negroes 
of the West Indies. We never could get out of them, 
although we employ them for the week, eight hours a 
day for six days. We must build the canal, and to al- 
low sentimental considerations, that really have no 
relevance at all to the work under such conditions, to 
increase the difficulties that we have found in getting 
the necessary labor, is to fly in the face of reason. 
Again, the administration is criticised for investigating 
the question with a view possibly of employing Chinese 
labor on the Isthmus. 

If Chinese common labor is more efficient than the 
tropical negro labor, why then should we not employ it, 
when it does not come into competition in any way what- 
soever with American labor, when the work is to be done 
about two thousand miles away from the territory of 
the United States, and under circumstances which will 
not affect in the slightest workingmen in the United 
States? If yellow labor is able to withstand the effects 
of the tropical sun, what difference does it make whether 
we employ black labor or yellow labor if the American 
laborer cannot do the work? President Roosevelt be- 
lieves that we ought to use reason and not to be carried 
away by sentiment that has no basis in common sense. 

And now, ladies and gentlemen, I come to another 
question which seems to be a local question, and yet one 
in which the President is deeply interested, because it 
is a question much wider than the State of Idaho, and 
reaches out into the neighboring states and to the coun- 
try at large. First I ought to state the position of the 



AND ADMINISTRATION 



151 



President. It is that he favors and has the most active 
sympathy with all branches of labor and all branches 
of labor organizations; that he favors and has sym- 
pathy with all corporate enterprises that make for the 
prosperity of the country; but the line he draws, and 
the line he insists upon, is that if a representative of 
either steps beyond the law and violates it, he must 
be punished. Now in the neighboring State of Colo- 
rado they had for years a condition in which both min- 
ers and state officers and the heads of mining corpora- 
tions violated the law in a war against each other, and 
the President is utterly out of sympathy with them all. 
They brought disgrace upon the State of Colorado, 
and what he is hoping and praying for is that condi- 
tions may not arise in Idaho which shall lead to the same 
results. He believes that the election of Governor 
Gooding is one of the most important issues of this 
campaign. The question, as he views it, is whether an 
executive officer, charged with the execution of the law, 
who attempts to bring to trial, and does bring to trial, 
men charged with a heinous crime, shall be marked for 
defeat at an election because those men can awaken 
sympathy the country over because of their associations 
and affiliations. This is not a prosecution by a corpo- 
ration. This is a prosecution by the State of Idaho 
to vindicate it and its community and to punish a 
heinous crime. It is not an incident in a war between 
capital and labor. It is merely the punishment of 
crime. Neither Governor Gooding nor anyone inter- 
ested in the prosecution says that the men are guilty. 
What he says, and what the officers of the law charged 
with the duty of bringing them to trial say, is that 
there is evidence enough to justify their indictment by a 
grand jury lawfully impaneled, and therefore that they 



152 A REPUBLICAN CONGRESS 



ought to be brought to trial. It is said that there was 
injustice in their extradition. All the papers were 
made regularly; the evidence was set out and was ex- 
amined by the Governor of this State before he pre- 
sented his agent with a request for a warrant of extra- 
dition. The evidence was examined by the Governor of 
Colorado before that Governor passed upon it and 
issued his warrant and the men were brought here. Now 
it is said that they were not fugitives from justice be- 
cause when the crime was committed with which they 
were charged they were in the State of Colorado and the 
explosion which took the life of Governor Steunenberg 
occurred in this State. I ask you whether an executive 
officer did wrong to assume that a man from one State 
who committed a crime in another, though not person- 
ally present in the other, was nevertheless in law to be 
regarded as a fugitive from the justice of the State in 
which the crime was committed? Could he not reason- 
ably assume that that was the law until it was decided 
to be otherwise by the highest court of the land? In 
other words, might he not assume that there was not a 
premium to be put upon doing murder across State 
lines? If Governor Gooding is defeated in this election 
for this reason, then the State of Idaho and the people 
of the State of Idaho will serve notice on the world that 
criminals, or men charged with crime, who have a wide 
influence and can awaken a sympathy for themselves, 
can bring down condemnation upon the officers of the 
law having the courage to bring them to trial, and that 
such officer is to be condemned by his own people and 
turned out of office, or at least not re-elected when he 
submits himself to their suffrages. The charge is made 
that Governor Gooding is going to railroad these men 
to the gallows. I assume — I know — that the State of 



AND ADMINISTRATION 



153 



Idaho has a proper legal procedure for the trial of 
persons charged with crime ; that it includes a petit 
jury and a court to see that the jury does its duty and 
is instructed as to the law; that it includes a Supreme 
Court to which any error committed in that trial can 
be carried; and that it includes the Supreme Court of 
the United States to which Federal questions arising as 
to rights under the Federal constitution can be carried 
for decision there. The prisoners have enjoyed counsel. 
They have had funds furnished to them by their friends. 
There is no right which has been denied them. Why 
then should the officers of the law who are simply doing 
their duty be punished by popular disapproval at elec- 
tion? But it is sard that this is not an issue in this 
campaign. Senator Dubois, an old friend of mine, says 
that I had no business to come to this State to speak 
on this issue. Though an old friend of Senator 
Dubois, I differ frequently with him on political sub- 
jects, and one of the most frequent differences on politi- 
cal subjects is, "What is the issue of a campaign? " 
Governor Gooding from one end of this country to the 
other is receiving threatening letters from those who 
do not sympathize with the crime charged to Moyer and 
Haywood but who think that they are not guilty. He 
is now being opposed in his election by many men who 
are going all over this State and spending money for 
the purpose. If then he is defeated, I ask you whether 
the country is not likely to charge — will not necessarily 
charge — that the reason for his defeat is because he had 
the courage to do his duty? One Democratic paper (I 
do not know but that there are others) in one part of 
the State invites opposition to Governor Gooding and 
a vote for his opponent because Governor Gooding 
brought Moyer and Haywood to this State. In other 



154 CONGRESS AND ADMINISTRATION 



parts the Democratic papers follow the Democratic 
platform, which is in favor of law and order 
and the punishment of those responsible for crime. I 
assume that the opponent of Governor Gooding is a 
law-abiding citizen and would obey the law, but he can 
not be elected without the aid of those who are opposing 
Governor Gooding on the ground that he did his duty. 
Therefore I do not care what is said with respect to 
other issues, the issue of the supremacy of the law is the 
real issue — the standing up for your officials who have 
courage in face of explosions, in face of hostile and 
powerful interests to enforce the law. The supremacy 
of the law under such circumstances is an issue that 
overshadows all issues and ought therefore to lead all 
patriotic citizens, without regard to party, to support 
your faithful official. 



THE LEGISLATIVE POLICIES OF THE PRES- 
ENT ADMINISTRATION 



columbus, ohio, august 19, 1907 

quickening of public conscience in midst of 
prosperity 

Members of the Buckeye Republican Club and 
Fellow- Citizens of Ohio : The present is a period 
of the greatest prosperity, general comfort and even 
luxury. Throughout this country, the demand for labor 
has increased wages to a higher point than ever known 
before. The compensation of skilled labor now fre- 
quently exceeds that of certain professions, like teaching 
and the ministry. Wealth has accumulated enormously 
in the hands of individuals and never before have rich 
men given so freely of their fortunes to educational and 
charitable objects. Such conditions are apt to dim and 
dull the eye and the ear of the people to abuses and dis- 
honesty in the body politic and social. In such periods 
in the history of ancient republics their foundations 
were sapped and their fall ultimately brought about. 
Prophets of evil have foretold the same fate for this 
Republic. They have been refuted. In spite of the 
general comfort, there have been made manifest by signs 
not to be misunderstood, a quickening of the public con- 
science and a demand for the remedy of abuses, the 
outgrowth of this prosperity, and for a higher stand- 
ard of business integrity. Every lover of his country 
should have a feeling of pride and exaltation in 
this evidence that our society is still sound at the 
core. 

155 



156 THE LEGISLATIVE POLICIES OF 



ABUSES IN RAILWAY DISCRIMINATIONS 

I have been invited by your body to discuss the na- 
tional issues. Some of these involve the abuses over 
which the public conscience has been aroused, and the 
proper remedies for their removal. The first, and pos- 
sibly the greatest, abuse has been in the management of 
the arterial system of the country which the interstate 
railroads form. Any unjust discrimination in the terms 
upon which transportation of freight or passengers is 
afforded an individual or a locality, paralyzes and 
withers the business of the individual or the locality 
exactly as the binding of the arteries and veins leading 
to a member of the human body destroys its life. 

FAILURE OF OLD INTERSTATE COMMERCE LAW AND 
CAUSES 

The result of twenty years' operation under the inter- 
state commerce act of 1887, passed to restrain abuses 
of unjust discrimination and unreasonableness of rates, 
was that the railroads came to regard the action of the 
commission it created as of no importance. The de- 
lays, due to the necessity of resorting to the courts to 
try out the merits of every order of the commission, be- 
fore it became effective, made the remedy of the com- 
plaining shipper or locality so slow and burdensome that 
in contested cases it was no remedy at all. The com- 
mission was not, under the old act, authorized to fix 
reasonable rates. It could only say that a particular 
rate was unreasonable and order a railroad to change its 
rate and make it reasonable. The railroad might fix 
a new rate at anything less than the rate declared to be 
unreasonable, and if the reduction made was not suffi- 



THE PRESENT ADMINISTRATION 157 



cient, a new action had to be brought to decide that 
the new rate was also unreasonable. 

president roosevelt's recommendation — new 
rate bile 

Made aware of the moribund condition of railway 
regulation under the old law and of the widespread 
abuses which prevailed in railway management, Presi- 
dent Roosevelt, in his message of 1904, recommended 
that the powers of the commission be largely increased ; 
first, by enabling the commission to fix rates, and second, 
by making its order effective against the carriers with- 
out resort to courts to compel performance. He asked 
that it be made an administrative tribunal with real 
power. This was done by the passage of the Rate Bill, 
in June, 1906. The new act enables the commission 
to fix rates and gives efficacy to all of its orders by 
providing that they shall go into effect thirty days 
after they are made, unless suspended by an order of 
court, and failure to comply with them is punishable 
by a fine of $5,000 a day during the delinquency. Ex- 
press companies, sleeping car companies, and oil pipe- 
line companies are brought under the jurisdiction of the 
commission as common carriers. The act gives the 
commission power to fix rates for the various inci- 
dental services performed by railways at terminals and 
on the journey and to require them to be performed for 
every shipper. By withholding such services from one, 
and extending them to another, and by imposing vary- 
ing charges for them, companies have been able in the 
past to make them a convenient instrument for dis- 
crimination. The new law requires the publication of 
rates charged for such incidental services. Railroads 
are compelled to furnish cars without discrimination 



158 THE LEGISLATIVE POLICIES OF 

for the movement of traffic. After May, 1908, they 
are confined in their business strictly to transportation 
by a provision forbidding them, after that date, to 
transport for themselves anything but what is intended 
for their use as common carriers. Experience has 
shown that the railroads can not be trusted to deal fairly 
in matters of transportation between themselves and 
their competitors in an outside business. The new law 
makes radical changes in the matter of the publication 
of rates. Under the old law, by means of what was 
called the " midnight tariff," a railroad company gave 
favored shippers advance information of a contemplated 
reduction of rate and immediately restored the old rate 
when these shippers had profited by it. Thirty days' 
notice is now required of any change in the rates unless 
the commission, for good cause, modifies the require- 
ment. 

RESEMBLES NATIONAL BANKING ACT 

Again, the new law enables the commission to pre- 
scribe a uniform system of accounting for railroads. 
Under the old law the commission could call for a report 
of the railroads and might ask questions of railroads, 
but it had no way to compel a compliance with its re- 
quest, and no penalty was provided in the law for 
failure to make the full report. Under the new law, 
annual reports must be made under oath, and penalties 
are prescribed for failure to file them with the com- 
mission within a certain time. The commission can call 
for monthly or special reports. It may prescribe the 
bookkeeping methods of the carrier and has access at 
all times through examiners to the carrier's books. 
The carrier is forbidden to keep any other books than 
those prescribed. The commission's authority, under 



THE PRESENT ADMINISTRATION 159 



the new law, over interstate commerce railroads is thus 
in many respects like that of the Comptroller of the 
Currency over National Banks, which has the approval 
and confidence of the country. 

GREAT OPPOSITION BY RAILROADS THEIR ARGUMENTS 

AGAINST BILL 

Never before was there such a united opposition by 
the railroad interests to any National measure as they 
instituted against the Rate Bill. A campaign of edu- 
cation was entered upon, speeches were made in every 
part of the country and literature was showered upon 
the members of every community, with the hope of con- 
vincing the public that the bill was a dangerous inno- 
vation. 

The objections urged against it were three: First, it 
was said to be unwise because it was a departure from 
the laissez-faire doctrine of as little government as pos- 
sible, and was a long step toward socialism and Govern- 
ment ownership. 

OUTRAGED PUBLIC OPINION CARRIED THE BILL 

The revelations of infidelity to trust obligations in the 
Insurance investigations in New York, the fraudulent 
discriminations in the traffic of the coal-carrying roads, 
disclosed by the inquiry made by the interstate com- 
merce commission, and the disclosure of secret rebates 
on an enormous scale granted the Standard Oil Com- 
pany by the railroads in the report of Mr. Garfield, as 
Commissioner of Corporations, overcame such a specious 
argument, created a strong public opinion in favor of 
a radical remedy against all dishonest corporate prac- 
tices, and held up the hands of those supporting the 
biU. 



160 THE LEGISLATIVE POLICIES OF 



SECOND OBJECTION INCOMPETENCY OF COMMISSION TO 

FIX RATES PROVED TOO MUCH 

The second ground of opposition was that a tribunal 
like the commission was utterly unable to fix rates, — 
that the fixing of rates was such a difficult matter, 
that only the expert traffic managers of railroads were 
competent for the work; that each rate was so connected 
with every other that it was impossible for a body of 
laymen to reach a safe and just conclusion in respect 
to any one rate, without creating hopeless confusion. 
The argument proved too much. If the commission 
could not fix rates, then neither it nor a court could 
safely determine whether a rate was unreasonable, for 
exactly the same expert knowledge was needed to say 
that a rate was unreasonable as to say what was a 
maximum reasonable rate. Indeed, in the natural men- 
tal process, a maximum reasonable rate must be deter- 
mined before declaring the rate in question unreason- 
able. All this inevitably led to the conclusion that 
there was no remedy either by Commission or Court 
against unreasonable rates, that the public was helpless, 
and that the whole matter must still be left to the only 
experts, the traffic managers of the railroads, although 
it was the dishonesty, discrimination and injustice of 
many of them which had been the cause of the trouble. 
Naturally, the argument had weight neither with Con- 
gress nor with the public. 

CONSTITUTIONAL OBJECTION BY RAILROADS WITHOUT 
WEIGHT 

The third and final objection was that the law was 
invalid in that Congress was thereby delegating its 
legislative power to another body, and was violating 



THE PRESENT ADMINISTRATION 161 



the general constitutional rule that delegated power 
can not be delegated. The rule has an exception. There 
may be delegation of legislative power where the pur- 
pose in the original conferring of the power can be 
subserved only by its delegation to an agent. It is 
admitted that the constitution gives Congress the power 
to fix rates. Obviously, however, it is impossible for 
Congress as a body to spend the time and labor to do so. 
If the power is to be exercised at all, practically it can 
be done only through a tribunal or an agency like 
that of the interstate commerce commission. Hence 
Congress may delegate the power under proper legisla- 
tive limitations and rules of decision. A similar con- 
clusion has been reached by a number of State courts 
with reference to the power of legislatures under State 
constitutions presenting the same question, and while 
the case has not, with respect to a Federal commission, 
been brought directly before the Supreme Court of the 
United States, there is a plain dictum in one decision 
in favor of the validity of such delegation of legis- 
lative power. 

SMALL VOTE AGAINST BILL 

The opponents of the bill were not able with these 
objections to muster more than seven negative votes in 
the House of Representatives, or three votes in the 
Senate. 

OPPONENTS OF RATE BILL NOW BELITTLE IT AND PRAISE 
ELKINS BILL 

The opponents of the measure continue to denounce 
it, but now instead of pointing out its disastrous effect, 
they say it is a failure and that in the year since its 
passage, it has not helped a single shipper. They 



162 THE LEGISLATIVE POLICIES OF 



insist that the only effective and all-sufficient law to 
regulate railways is the Elkins act, passed in 1903, and 
that this is shown by the fact that all the prosecutions 
in which convictions have been had against railway com- 
panies and favored shippers in the last two years, have 
been under the Elkins Act, and not under the Rate Bill. 
Let us look into the facts in regard to this allegation. 
The chief prosecutions which have been instituted have 
been criminal indictments against the Sugar Trust and 
the Standard Oil Company, and certain railways and 
their agents and officers for taking and giving secret 
money rebates. They could not have been brought 
under the Rate Bill, because the acts prosecuted were 
committed before the passage of the Rate Bill. 

EFFECT OF ELKINS BILL ON EXISTING CRIMINAL PROSECU- 
TIONS WAS TO SAVE REBATE GIVERS AND 
TAKERS FROM JAIL 

It is true that these prosecutions were instituted under 
the Elkins Act, but it is also true that had the Elkins 
bill never been passed, the same acts could and doubt- 
less would have been prosecuted as giving and receiving 
unjust discriminations against the persons committing 
them under the amendment to the Interstate Commerce 
Act of 1889 which the Elkins law supplanted. The 
Elkins law was really an amendment to the Interstate 
Commerce Act, enlarging and making more effective 
the procedure for prosecuting violations of the prohibi- 
tions of that law and describing them in more compre- 
hensive form. It gave greater latitude in respect of the 
district where the offense would be prosecuted and it 
made the company necessarily responsible in a fine for 
the act of its agents, without other proof of direct com- 
plicity than the agency. Under the 1889 amendment, 



THE PRESENT ADMINISTRATION 16S 



however, the individuals convicted could have been sent 
to the penitentiary, whereas under the Elkins Act the 
punishment by imprisonment was taken away while the 
fine was increased. The chief effect the Elkins law had 
on these particular prosecutions which have been given 
so much prominence, was to make it easier to convict the 
corporation and to increase its fine, but to save the 
guilty individual perpetrators from imprisonment. 

RAILROADS FAVORED ELKINS BILL BECAUSE OF ABOLITION 
OF JAIL PENALTY 

It is well understood that the Elkins bill was passed 
without opposition by, and with the full consent of, the 
railroads and that the chief reason for this was the 
elimination of the penitentiary penalty for unjust dis- 
criminations. The abolition of imprisonment, as a pos- 
sible penalty, was unfortunate. Experience has shown 
that a mere fine is generally not enough to deter a cor- 
poration from violation of the law, because it then be- 
comes a matter of mere business speculation. The im- 
prisonment of two or three prominent officers of a rail- 
way company, or a trust, engaged in giving or receiv- 
ing secret rebates, would have a greater deterrent effect 
for the future than millions in a fine. 

RATE BILL RESTORED JAIL PENALTY 

In the Rate Bill, Congress amended the Elkins bill 
and restored imprisonment as part of the punishment 
for secret rebates. Had the rebating and dishonest 
practices of the railroad companies and the trusts, been 
as clearly known to Congress and the public, when the 
Elkins bill was considered, as they were when the Rate 
Bill was passed, the Elkins bill would not have passed 
so smoothly. 



164 THE LEGISLATIVE POLICIES OF 



NARROW SCOPE OF ELKINS BILL. AS COMPARED WITH 
RATE BILL 

I do not wish to decry the merits of the Elkins bill be- 
cause, aside from its elimination of imprisonment as 
punishment, it is a most useful measure, but its scope is 
so narrow in respect of the regulation of railways that 
it can not be compared in importance of operation and 
effect to the Rate Bill. The increase by the Rate Bill 
in the powers of the commission in supervision, inves- 
tigation, rate-fixing and effective order-making to pre- 
vent discrimination is great. Elaborate machinery for 
making it difficult to violate the law without discovery 
and for discovering violations when they exist, and for 
affording affirmative and mandatory relief in requir- 
ing railroads to furnish equal facilities to all, is found 
in the provisions of the New Rate Bill. Criminal prose- 
cutions will continue to be under the Elkins law, but as 
amended by the new Rate Bill. This is because the 
Elkins law, as amended, contains the part of the inter- 
state commerce legislation which prescribes the punish- 
ment for violations of the law and so, in ordinary prac- 
tice, comes into operation after the violations have been 
discovered under the other provisions of the Rate Bill. 

IF THE RATE BILL IS INEFFECTIVE WHY SUCH RAILROAD 
OPPOSITION? 

If the Rate Bill was likely to be a failure and to 
accomplish nothing in the regulation of their business, 
the query naturally arises, Why did the railroads spend 
so much money and so great effort to defeat it? Why 
was it, if it had no effect, that in the interval between the 
time of its passage and its going into effect, there were 
filed with the interstate commerce commission more no- 



THE PRESENT ADMINISTRATION 165 



tices of reduced rates by the railroads than ever had 
been filed in the previous twenty years of the life of 
the interstate commerce law? It is true that later on, 
many rates were properly raised by the railroads be- 
cause of an increase in wages and other cost of main- 
tenance; but I only cite the prompt action of the rail- 
ways on the passage of the bill as a recognition by 
them of the importance of the measure and the in- 
creased power of the commission. 

GOOD EFFECT OF RATE BILL NATURALLY NOT SHOWN IN 
STATISTICS 

The Rate Law has not been in operation a year, and 
the beneficial results from its operations though clear, 
are not ready to be presented in statistical array. 
Moreover, the chief benefit of the act is likely to be its 
influence in discouraging attempts to renew the old 
abuses and such benefits do not appear in statistics. 
The immediate effect of the act has certainly been 
to compel railroads to regard the commission now as the 
important tribunal whose views they must follow. They 
are manifesting every outward disposition strictly to 
comply with the law and to avoid prosecution or com- 
plaint. The time has gone by in which the action of 
the commission can be ignored or laughed at. The 
commission itself has taken up its duties with renewed 
energy, has proceeded, without awaiting the intervention 
of the railroads or the filing of complaints, to con- 
strue the act by administrative rulings, in order to 
assist the railroads in complying with the law. With 
the large powers for correcting evils, which the com- 
mission now has, we may reasonably expect a marked 
improvement in the conduct of the railways of this 
country. 



166 THE LEGISLATIVE POLICIES OF 



THE ATTITUDE OF THE COUNTRY TOWARD THE RATE BILL 

The passage of the Bill was taken, the country over, 
and properly taken, as a most important step toward 
the suppression of abuses which had grown up in a 
period of tolerant prosperity. It was thought to be 
an effective cure of the arterial system of the country 
which had become poisoned by dishonesty, injustice and 
fraud. It was a great solace to the conscience of the 
country outraged by recent revelations of railway and 
trust management. Passed at the instance of Mr. 
Roosevelt, it stands as a monument to the principle 
which he has incessantly maintained in speech and ac- 
tion, that the laws must be so made that they can be 
enforced as well against the sins of the wealthy and the 
powerful as against those of the poor. 

ERROR OF MR. BRYAN AS TO COURT REVIEW IN RATE BILL 

Mr. Bryan contends that the law was greatly weak- 
ened in authorizing, or recognizing judicial interven- 
tion to restrain the orders of the commission. This crit- 
icism has not the slightest foundation. There can be 
no judicial appeal in the nature of a complete review 
on the merits from the commission to the Supreme Court 
or to the circuit court of the United States, for the com- 
mission is not a court of first instance, but only a mere 
administrative tribunal. The only power a Federal 
Court could validly exercise would be to decide first, 
whether the administrative tribunal had followed cor- 
rectly the limitations upon its course of action imposed 
by the act of Congress creating it, and second, whether 
its order taken as an authorized expression of the legis- 
lative power deprived the railroad company of its right, 
under the fourteenth amendment, to derive a fair profit 



THE PRESENT ADMINISTRATION 167 



from the use of its property. Whether the Federal 
courts were expressly given this power in the law or 
not, they would have had it under their general juris- 
diction. If their power had not been recognized and a 
purpose of Congress had been expressed to prevent an 
appeal to the courts, the law would have been invalid. 
The extent of the judicial remedy could not be either 
diminished or enlarged by Congressional action, with 
due regard to the validity of the act. Congress was 
wise, therefore, in not attempting to define what the 
court should or should not do, and in merely recogniz- 
ing the right of the companies to appeal to the Federal 
courts to test the validity of the action of the com- 
mission. No victory was gained by either the conserva- 
tive or the radical party in this regard. 

IMPORTANCE OF COURTS IN UPHOLDING CONSTITUTIONAL 
GUARANTIES 

By what I have said, however, I would not for a mo- 
ment be thought to favor any legislation which would 
exclude railroad companies or anyone else from a 
recourse to the courts to protect them in their statutory 
and constitutional rights. The courts, and especially 
the Supreme Court of the United States, are the part 
of our government indispensable in making good those 
guaranties of life, liberty, property and the pursuit of 
happiness given in the Constitution and placed there 
by the people themselves to curb their own hasty action 
under stress of sudden impulse or with too little de- 
liberation. The administration of exact justice by 
courts without fear or favor, unmoved by the influence 
of the wealthy or by the threats of the demagogue, 
is the highest ideal that a government of the people 
can strive for, and any means by which a suitor, how- 



168 THE LEGISLATIVE POLICIES OF 



ever unpopular or poor, is deprived of enjoying this is 
to be condemned. It is important, however, that appeals 
to judicial remedies should be limited in such a way 
that parties will not use them merely to delay and so 
clog efficient and just executive or legislative action. 

NEW AMENDMENTS TO THE RATE BILL NEEDED 

CLASSIFICATION 

The Rate law does not go far enough. The practice 
under it has already disclosed the necessity for new 
amendments and will doubtless suggest more. Such is 
the true method — the empirical and tentative method — 
of securing proper remedies for a new evil. The classi- 
fication of merchandise for transportation is a most 
important matter in rate-fixing, for by a transfer from 
one class to another, the rate is changed and may work 
injustice. With the power of rate-fixing, it would 
seem, should go the power in the commission to classify 
and to prescribe rules for uniform classification by all 
railroads. 

AMENDMENT NEEDED TO PREVENT OVER-CAPITALIZATION 

Recent revelations have emphasized the pernicious 
effect of the so-called over-capitalization of railroads 
which aids unscrupulous stock manipulators in dispos- 
ing of railway securities at unreasonably high prices to 
innocent buyers. This evil would not of itself justify 
Federal restraint or control because such stock and 
bonds are usually issued under State charters. The 
practice, however, has a tendency to divert the money 
paid by the public for the stock and bonds which ought 
to be expended in improving the road bed, track and 
equipment of railways into the pockets of the dishonest 
manipulators and thus to pile such an unprofitable 



THE PRESENT ADMINISTRATION 169 



debt upon a railway as to make bankruptcy and a re- 
ceivership probable in the first business stringency. 
This result, in an interstate railway, necessarily inter- 
feres with, and burdens, interstate commerce, and justi- 
fies the exercise of the regulative power of Congress to 
stop the practice. A railroad company engaged in 
interstate commerce should not be permitted, therefore, 
to issue stock or bonds and put them on sale in the 
market except after a certificate by the interstate com- 
merce commission that the securities are issued with the 
approval of the commission for a legitimate railroad 
purpose. The railroads that are honestly conducted 
would accept the certificate of the commission as a valu- 
able one in the markets of the world, and only railway 
stock manipulators, who look to the floating of watered 
securities as their best source of profit, would have 
reason to complain. 

AMENDMENTS AGAINST PURCHASE OF STOCK IN COMPET- 
ING LINES AND AGAINST COMMON DIRECTORS 

A much-used means of eliminating competition among 
interstate lines serving the same territory is the ac- 
quisition by one company of the stock in another and 
the election of directors to represent that stock. This 
process is facilitated by the uncontrolled power to issue 
securities beyond the needs of the company for its 
legitimate business and would be curbed by the restric- 
tion proposed. The evil ought further to be directly 
restrained by making it unlawful for an interstate rail- 
way to acquire stock in a competing line. This is a 
simpler remedy of meeting the evil than by recourse to 
the anti-trust law under the Northern Securities case. 
In addition to this, competing lines should be prohibited 
from having directors or officers in common. 



170 THE LEGISLATIVE POLICIES OF 



PROPOSED AMENDMENTS PLAINLY CONSTITUTIONAL 

These suggestions of additional legislation in respect 
to the supervision and control of interstate railways 
have been made by the interstate commerce commission 
and I heartily concur in them. They are plainly within 
the Federal jurisdiction under the interstate commerce 
clause. I do not think that in order to accomplish a 
good which the Federal Government with its greater re- 
sources and wider geographical reach can bring about 
more quickly and efficiently, the constitutional limits 
upon Federal action should be blurred out or an un- 
doubted Federal power should be expanded by doubt- 
ful construction into a field which really belongs to 
the State. But the right of Congress to take any ac- 
tion, not confiscatory, in the most rigid control of in- 
terstate commerce can not be denied. 

SUGGESTED BY HARRIMAN CONSOLIDATIONS 

The measures taken and proposed are radical per- 
haps, viewed from the standpoint of the laissez-faire 
doctrinaire whose ideas have been allowed to prevail in 
respect of railroad management down to the present ; 
but no one can read the report of the commission on the 
history of the union of the Southern Pacific and Union 
Pacific systems with the Illinois Central system without 
trembling at the enormous power that one man, by the 
uncontrolled use of the stock and bond issuing power 
of interstate railways under State charters, has ac- 
quired in respect of a vital part of the country's busi- 
ness and without looking for some means of remedying 
such a dangerous tendency which, if not stopped, will 
lead to the absorption of all the railroads of the country 
into one hand. 



THE PRESENT ADMINISTRATION 171 



RATE BILL AND PROPOSED AMENDMENTS NOT SOCIALISTIC, 
BUT THE OPPOSITE 

The contention on behalf of the railroads, already 
noticed, that such supervision as the Rate Bill and 
these suggested amendments afford, is socialistic and 
tends to Government ownership, is utterly without basis. 
Efficient regulation is the very antidote and preventa- 
tive of socialism and Government ownership. The rail- 
roads, until now, have been permitted to wield without 
any real control the enormously important franchise 
of furnishing transportation to the entire country. 
They have constructed 230,000 miles of road. In cer- 
tain respects they have done a marvelous work and have 
afforded transportation at a cheaper rate, per ton, per 
mile and per passenger, than in any country in the 
world. They have, however, many of them, shamelessly 
violated the trust obligation they have been under to the 
public of furnishing equal facilities at the same price 
to all shippers. The watering of stock and bonds and 
the over-capitalization of some of them for the profit 
of their managers have prevented the needed improve- 
ment of their railroads in construction and equipment. 
The tremendous demand for increased facilities due to 
the enormous growth of business shows the inadequacy 
of their equipment and construction. While they might 
not have been expected to meet in full such an extraor- 
dinary demand, the obligations some of them have 
assumed in the form of stocks and bonds leave no 
doubt that, had the money they represented been put 
into the roads in good faith, the shortage of cars 
and equipment and inadequacy of road bed and track 
would not be so great. They discharge a public func- 
tion. They have been weighed in the balance and found 



172 THE LEGISLATIVE POLICIES OF 



wanting. The remedy for the evils must be radical to 
be effective. If it is not so, then we may certainly 
expect that the movement toward Government owner- 
ship will become a formidable one that can not be stayed. 

OBJECTIONS TO GOVERNMENT OWNERSHIP 

I am opposed to Government ownership — 
First, because existing Government railways are not 
managed with either the efficiency or economy of pri- 
vately managed roads and the rates charged are not as 
low and therefore not as beneficial to the public; 

Second, because it would involve an expenditure of 
certainly twelve billions of dollars to acquire the inter- 
state railways and the creation of an enormous national 
debt. 

Third, because it would place in the hands of a reck- 
less executive a power of control over business and 
politics that the imagination can hardly conceive, and 
would expose our popular institutions to danger. 

PROPOSED RAILWAY REGULATION NOT INCONSISTENT WITH 
INDIVIDUALISM 

The supervision proposed need not materially reduce 
the legitimate operation of individualism in railway en- 
terprise. It will indeed limit the opportunity to ac- 
cumulate enormous fortunes through over-capitalization 
or secret rebates, but the legitimate profit which comes 
from close attention to operation, to efficiency of serv- 
ice, and economy in details and from broad conceptions 
of new methods of reducing cost without impairing the 
service will not be disturbed in the slightest. There is 
no attempt to take away the property of the railway 
companies ; there is no furnishing of public money to the 
enterprise and no public officers are required to ad- 



THE PRESENT ADMINISTRATION 173 



minister the property. There is no more attempt in this 
law to make transportation a Government business than 
there is in the National Banking act to making banking 
a government business. 

FAVORS RAILWAY RATE AGREEMENTS IF SUBMITTED TO 
AND APPROVED BY INTERSTATE COMMEBCE 
COMMISSION 

The movement of competing railway companies to 
consolidate arose originally from fear that the anti- 
trust act forbade them to make agreements as to uni- 
form tariffs. If they were now permitted to make such 
agreements subject to the approval of the interstate 
commerce commission, such a tendency would lose much 
of its force. It is impossible to prevent competing 
railways from seeking to make their tariffs uniform in 
order to prevent an unending and disastrous tariff war, 
and though such agreements are against the law, it is 
perfectly apparent that tacit arrangements for uni- 
formity exist. These arrangements do not prevent the 
operation of competition, from time to time as one com- 
pany finds that it may acquire new business without loss 
by a reduction of rate and insists on it, but they do 
prevent a tariff war which helps neither the public nor 
the railway by violent fluctuations in rates. As the f 
public now asserts the right to fix maximum rates and 
thus to eliminate one phase of competition, it is logical 
to permit an agreement on rates, if approved by 
the interstate commerce commission, the tribunal ap- 
pointed to fix rates. The President and the commission 
both recommend a provision permitting such agree- 
ments. In this way, there would be restored that re- 
spect for law which many railroad men in the last dec- 
ade seem to have lost. Moreover, every company under 



174 THE LEGISLATIVE POLICIES OF 



such a system would be a policeman to see to it that 
every other company obeyed the agreement and the 
law, and strictest obedience would be secured. 

PHYSICAL VALUATION 

Mr. Bryan is most insistent, in discussing rate regu- 
lation, that the present physical value of all roads in 
the country should be ascertained for the purpose of 
fixing rates by allowing to the railroad companies only 
a fair profit on such valuation. Whenever the inter- 
state commerce commission deems it important as an 
aid in fixing rates to determine what it would cost now 
to rebuild any railroad, it has complete power to do 
so; but it would doubtless be found in respect to most 
of them that in spite of over-capitalization and lack 
of economy in construction, land for terminals and 
right of way and the cost of construction, have in- 
creased so enormously that the total of their securities 
upon which they pay dividends and interest is not much 
if any in excess of present physical value. More than 
this, physical valuation, as the President pointed out 
in his Indianapolis speech, and as the Supreme Court 
had in effect said before him, is only one of a number 
of data to be considered in reaching what is a fair 
profit upon the investment; and in determining a par- 
ticular rate, the proper relation between that rate and 
the total net profit of operation is so complicated with 
an infinite variety of other circumstances that it is 
most difficult in rate-fixing to use the latter to affect the 
former. The importance of fixing rates, complained of 
as too great in and of themselves, is much exaggerated ; 
for the overwhelming evidence is that, on the whole, rates 
in this country, especially as compared with those of all 
European railroads, many of which are owned and 



THE PRESENT ADMINISTRATION 175 



operated by the government, are low. The chief evil 
consists in unjust discrimination in rates between in- 
dividuals and localities. I do not object to valuation, 
if thought relevant to any issue, but I merely deprecate 
the assumption that it is to be the chief means of a 
great reform in rates. 

FRIGHTFUL LOSS OF LIFE AND LIMB AMONG RAILWAY 
EMPLOYEES REQUIRES STRINGENT REGULATIONS 

The frightful loss of life and limb among the rail- 
way employees of this country, reaching more than 
4,000 killed and 65,000 injured in one year, has prop- 
erly attracted the attention of Congress and the Legis- 
latures. It makes apparent that service in connection 
with trains of a railway is an extra-hazardous business 
and may well call for Government supervision and ex- 
ceptional rules to secure the safety of the passengers 
and reduce the danger to employees. Congress, years 
ago, passed stringent laws for the adoption of safety 
devices to protect both employee and passenger on in- 
terstate railways. With the same purpose, it has re- 
cently limited the hours of continuous service for which 
employees on such railways may be engaged. 

STATUTORY RULE FOR LIABILITY OF INTERSTATE RAIL- 
WAYS TO EMPLOYEES 

Finally, it has regulated the rules for the liability 
of an interstate railroad company to an employee in- 
jured in its service. This is a most important measure, 
for an unfortunate lack of uniformity has existed here- 
tofore in respect to the rules of liability in such cases, 
dependent on the court in which the case has been tried. 
The new statute makes everything uniform as to inter- 
state railroads. It has introduced into Federal law 



176 THE LEGISLATIVE POLICIES OF 



what is called the comparative negligence theory by 
which if an employee is injured, proof of negligence on 
his part does not forfeit his claim for damages entirely 
unless the accident was due solely to his negligence. 
If there was negligence by the company, the jury is 
authorized to apportion the negligence and award com- 
pensation for the proper part of the damage to the 
employee and the question of negligence is always for 
the jury. 

ABOLITION OF FELLOW-SERVANT RULE 

The most important provision of this law, however, is 
that abolishing what is known as the fellow-servant rule, 
by which an employee injured can not recover from his 
employer for injury sustained through the negligence 
of a co-employee. This rule was incorporated into the 
law by Chief Justice Shaw, of Massachusetts, on the 
ground of public policy. It was acquiesced in by the 
Courts of England and of this country. Whatever may 
have been the wisdom of the rule originally, a change 
of conditions justifies its abrogation. Public policy 
can be changed by statute, so that this exemption from 
liability is not secured by the constitution to the railroad 
companies. The abolition of the exemption certainly 
furnishes a strong motive to the railroad companies 
for the exercise of greater care in the selection, super- 
vision and control of all of their employees, which tends 
not only to the safety of their employees, but also to the 
safety of their passengers. 

NEW LAW WILL LEAD TO SETTLEMENT OF MOST CLAIMS 
WITHOUT SUIT 

With these changes, all claims by employees against 
railroad companies, except in a few extreme cases, will 



THE PRESENT ADMINISTRATION 177 



doubtless be settled by the railway companies without 
litigation, just as they now settle without suit sub- 
stantially all claims for injuries to passengers. The 
validity of this law is under consideration by the Su- 
preme Court. The only serious doubt in regard to its 
constitutionality grows out of some carelessness of 
language in limiting its application to interstate rail- 
ways and, therefore, even if the present law should fall, 
there will be no difficulty in reenacting it in proper 
form. 

TRUSTS \ 

I pass now from railway regulation and the abuses\ 
arising in the discharge of a public function to the evils \ 
which have grown out of the combinations existing in 
private business, and so come to the subject of Trusts. 
The combination of capital in large plants to manufac- 
ture goods with the greatest economy is just as neces- 
sary as the assembling of the parts of a machine to 
the economical and more rapid manufacture of what in 
old times was made by hand. The Government should 
not interfere with the one any more than the other. 
In the proper operation of competition the public will 
soon share with the manufacturer the advantage in 
lowered prices. When, however, such combinations not 
only lower the cost to themselves, but are able to con- 
trol the market and maintain or raise the old prices, 
the public derives no benefit and is helpless in the hands 
of a monopoly. 

ANTI-TRUST LAW 

Fear of the existence of such an abuse led to the 
passage of the anti-trust law, in 1890. It recognizes 
two forms in which this evil may be maintained. One is 



178 THE LEGISLATIVE POLICIES OF 



by an agreement among a number of different manu- 
facturers of an article for the maintenance of the price 
of the article and the suppression of competition. This 
is denounced when the contract is in restraint of inter- 
state trade as a criminal offense against the United 
States, punishable by fine and imprisonment, and a con- 
spiracy which may be restrained by injunction in a 
civil suit. The other form is denounced, with similar 
remedies against it, as a monopoly of interstate trade, 
and covers the union of the conspiring companies into 
one company which, by owning all the plant or nearly 
all the plant, engaged in the manufacture of the product 
and by use of other devices, controls the prices. The 
Supreme Court of the United States has not defined 
what a monopoly under this section of the anti-trust 
law is. 

DEFINITION OF UNLAWFUL MONOPOLY 

I conceive that it is not sufficiently defined by saying 
that it is the combination of a large part of the plants 
in the country engaged in the manufacture of a par- 
ticular product in one corporation. There must be 
something more than the mere union of capital and 
plant before the law is violated. There must be some 
use by the company of the comparatively great size of 
its capital and plant and extent of its output, either to 
coerce persons to buy of it rather than of some com- 
petitor, or to coerce those who would compete with it, 
to give up their business. There must, in other words, 
be an element of duress in the conduct of its business 
toward the customers in the trade and its competitors 
before mere aggregation of plant becomes an unlawful 
monopoly. It is perfectly conceivable that in the in- 
terest of economy of production, a great number of 



THE PRESENT ADMINISTRATION 179 



plants may be legitimately assembled under the owner- 
ship of one corporation. In such a case it is either 
not a trust, if the term involves unlawfulness, or it is a 
lawful trust, if a trust merely means a company which 
has assembled a large part of the manufacturing plant 
of any product. It may be, as Mr. Bryan, in his con- 
troversy with Senator Beveridge, says, that there is a 
limit in the union of capital and plant that will effect 
economy, and that after that limit is reached, the in- 
crease of the plant or the capital rather enlarges the 
risk in the management of the business, and is likely to 
increase the cost of production rather than to diminish 
it. If so, then, when a corporation goes beyond that 
limit, there is a reasonable presumption that it is do- 
ing so for the purpose of monopolizing trade. 

MEEE AGGREGATION OF ALL PLANTS IN ONE OWNERSHIP 
DOES NOT SUPPRESS COMPETITION 

It must be borne in mind that in a country like this, 
where there is an enormous floating capital awaiting 
investment, the time within which competition by con- 
struction of new plants can be introduced into any busi- 
ness is comparatively short, rarely exceeding a year, 
and is usually even less than that. Many enterprises 
have been organized on the theory that mere aggrega- 
tion of all or nearly all existing plants in a line of 
manufacture, without regard to economy of production, 
destroys competition. They have most of them gone 
into bankruptcy. Competition in a profitable business 
will not be excluded by the mere aggregation of many 
existing plants under one company, unless the company 
thereby effects great economy or takes some illegal 
method to avoid competition and to perpetuate a hold on 
the business. 



180 



THE LEGISLATIVE POLICIES OF 



ILLEGAL DEVICES BADGES OF UNLAWFUL TRUSTS 

Frequently contracts have been made with customers 
by which they are required to deal exclusively with the 
Trust, on the threat that if there is not this exclusive 
dealing, then at a time when they most need the product, 
it will not be sold to them at all, or only at a very high 
price, and one prohibitive of profit on their part. 
Again, the tremendous wealth and resources of the 
Trust are exerted to destroy a rival in a particular lo- 
cality by selling at a very low price in that neighbor- 
hood and driving him out of business, and then raising 
the prices. This can be easily detected by the inequality 
of the prices which the Trust asks for the same com- 
modity in different localities under the same conditions. 
Such or like methods bring the company within the de- 
scription of a monopoly, at which the anti-trust law 
is directed. I am inclined to the opinion that the time 
is near at hand for an amendment of the anti-trust law 
defining in more detail the evils against which it is 
aimed, making clearer the distinction between lawful 
agreements reasonably restraining trade and those 
which are pernicious in their effect, and particularly 
denouncing the Various devices for monopolizing trade 
which prosecutions and investigations have shown to be 
used in actual practice. The decisions of the courts and 
the experience of executive and prosecuting officers 
make the framing of such a statute possible. It will 
have the good effect of making much clearer to those 
business men who would obey the laws the methods to 
be avoided. 



THE PRESENT ADMINISTRATION 181 



SECRET REBATES MOST EFFECTIVE TO MAINTAIN A 
MONOPOLY 

Another and perhaps the most effective method in the 
past for an unlawful trust to maintain itself has been 
to secure secret rebates or other unlawful advantage 
in transportation, by threat of withholding business 
from the carrier. This is undoubtedly what has en- 
abled the Standard Oil Company and the Sugar Trust, 
and other great combinations, to reap an illegal harvest 
and to drive all competitors from the field. If by assert- 
ing complete Federal control over the interstate rail- 
ways of the country, we can suppress secret rebates and 
discriminations of other kinds, we shall have gone a 
long way in the suppression of the unlawful trusts. 

ANSWER TO MR. BRYAn's QUESTION I WHAT SHOULD BE 
DONE TO TRUSTS? GOVERNMENT ACTION 

Mr. Bryan asks me what I would do with the trusts. 
I answer that I would restrain unlawful trusts with all 
the efficiency of injunctive process and would punish 
with all the severity of criminal prosecution every at- 
tempt on the part of aggregated capital through the il- 
legal means I have described to suppress competition. 

There has been great activity in the Department of 
Commerce and Labor and in the Department of Justice 
in an effort to investigate and restrain the continuance 
of such unlawful methods, and the success which has 
attended this effort in the dissolution of a number of 
such trusts where they consisted of several companies 
or partnerships united by a contract in restraint of 
trade has been gratifying. In the case of those who 
have made themselves into one corporation, their re- 
straint is more difficult. It involves enormous labor on 



182 THE LEGISLATIVE POLICIES OF 



the part of the Government to prosecute such a com- 
bination because the proof of the gist of the offense lies 
underneath an almost limitless variety of transactions. 
In the outset, it can be very much more easily reached 
by bill in equity than in a criminal prosecution and the 
questions of law arising may be more quickly settled. 
When the law is declared so that the corporation under- 
stands exactly the limits upon its action, and it then 
pursues its previous illegal methods, nothing but 
criminal prosecution ought to be resorted to. 

WHY TRUST PROMOTERS HAVE NOT BEEN IMPRISONED 

Mr. Bryan is continually asking why have some of the 
managers of unlawful trusts not been convicted and 
sent to the penitentiary? I sympathize with him 
in his wish that this may be done, because I think 
that the imprisonment of one or two would have a most 
healthy effect throughout the country ; but even without 
such imprisonment I believe that the prosecutions which 
are now on foot and the injunctions which have al- 
ready been issued, have had a marked effect on business 
methods. One reason for the small number of sentences 
of imprisonment in trust prosecutions is that the revela- 
tions of unlawful trust methods and dishonesty have 
been chiefly made known in secret rebates, and as I have 
already said, the Elkins act, until amended by the 
Rate Bill, only prescribed fines as a mode of punish- 
ment in such cases. 

JURIES HESITATE TO IMPRISON BY THEIR VERDICTS 

Again, it is difficult to induce juries to convict indi- 
viduals of a violation of the anti-trust law, if imprison- 
ment is to follow. In the case of the Tobacco Trust, the 
Government declined to accept a plea of guilty by the 



THE PRESENT ADMINISTRATION 183 



individual defendants, offered on condition that only 
the penalty of a fine be imposed, and the result was that 
the jury did not hesitate to stultify itself by finding the 
corporation guilty and acquitting the individual defend- 
ants, who had personally committed the acts upon which 
the conviction of the corporation was based. In the 
early enforcement of a statute which makes unlawful, 
because of its evil tendencies, that which has been in 
the past regarded as legitimate, juries are not inclined 
by their verdicts to imprison individuals. The course 
which the Government has pursued of resorting to civil 
processes first, and clarifying the meaning of a general 
statute which needs definition, is probably the best course 
to pursue. As the criminal prosecutions go on (and 
many such prosecutions have now been begun), if the 
violations of the trust law are continued, undoubtedly 
some shining marks will be hit, but the vigor with which 
these prosecutions have been continued has created an 
anxiety among those engaged in doubtful enterprises 
that has either driven them out of the business or made 
them careful not to give occasion for further com- 
plaint. 

BRYAN'S " EXTIRPATION ROOT AND BRANCH " 

Mr. Bryan says : " He would extirpate trusts, root 
and branch." If Mr. Bryan's language is more than 
mere rhetoric and he means to seize the property, to 
divide it up and sell it in pieces, and disassemble the 
parts, then I am not in favor of his method of dealing 
with trusts, because I believe that such large combina- 
tions legitimately conducted greatly add to the pros- 
perity of the country. The attitude of the Government 
toward combinations of capital for the reduction in the 
cost of production should be exactly the same as toward 



184 THE LEGISLATIVE POLICIES OF 



the combinations of labor for the purpose of bettering 
the conditions of the wage-worker and of increasing his 
share of the joint profit of capital and labor. They 
are both to be encouraged in every way as long as they 
conduct themselves within the law. They both wield 
enormous power, and if wielded for good, can be of 
inestimable benefit. Their power for evil when in the 
control of unscrupulous men is such that, if it is to be 
restrained, it needs the use of all the means which the 
executive and the courts can lawfully command. I 
think it entirely possible by the rigorous prosecutions 
of the law against illegal combinations and by the equal 
and just operation of railways, to prevent a recurrence 
of what we have had in the past and to restrain within 
the bounds of legitimate and useful business, all these 
great corporations. 

FEDERAL LICENSE OF ALL INTERSTATE BUSINESS 
CORPORATIONS 

Mr. Bryan's method of suppressing unlawful trusts 
would be to require every person, partnership or cor- 
poration, engaged in interstate traffic, to take out a 
Federal license, and by withholding such licenses from 
illegal trusts, he would make them impossible. It is 
probable that a statute embodying this plan, could be 
drawn which would stand the test of the Constitution. 
It would, however, have to contain some provision for 
ultimate judicial determination of those applicants for 
license who were violating the anti-trust law and thus 
involve the same litigation we now have. There is dan- 
ger that its effect would be so to clog the channels of 
legitimate interstate trade that after it had been tried 
for a short time, the people of the country would re- 
gard it as burdensome and demand its repeal. It is 



THE PRESENT ADMINISTRATION 185 



important that, in new legislation to stamp out evils, 
we should not so annoy the law-abiding in the com- 
munity as to lose their sympathy in the reform. This 
plan has had the approval of Mr. Garfield and others. 
I was at first inclined to think that this was a practical 
method, but fuller consideration, for the reasons given, 
makes me doubt. The decision of the Supreme Court 
that a corporation can not refuse to disclose facts which 
will criminate itself, makes less important the advantage 
which the license system was supposed to furnish in 
keeping the business of a corporation under observa- 
tion. Until it is clearer than at present that the evils 
of unlawful combinations can not be suppressed with- 
out it, it seems to me such a plan ought not to be 
tried. 

EVIL OF SWOLLEN FORTUNES 

One of the results of the conditions and evils which I 
have been describing has been the concentration of 
enormous wealth in the hands of a few men. I do not 
mean to say that all the large fortunes are to be traced 
to unlawful means but it is quite clear that many of 
those described as swollen are due to rebates, or to some 
form of unlawful monopoly, or to over-capitalization. 
Of course, great enterprises organized and managed by 
men of transcendent ability should result in great profit 
to them. It is proper compensation when they share 
with the people the profit from the economies that they 
introduce in the business by reducing the price. The 
captains of legitimate industry, therefore, are entitled 
to large reward, and it is impossible to impose a fixed 
limitation upon the amount which they may accumulate. 



186 THE LEGISLATIVE POLICIES OF 



LEGISLATION, NOT CONFISCATORY, HAVING TENDENCY TO 
DIVIDE SUCH FORTUNES AND TO DISCOURAGE 
THEIR ACCUMULATION NOT SOCIALISTIC 

On the other hand, it is not safe for the body politic 
that the power arising from the management of enor- 
mous or swollen fortunes should be continued from gen- 
eration to generation in the hands of a few, and efforts 
by laws, which are not confiscatory, to divide these 
fortunes and to reduce the motive for accumulating 
them are proper and statesmanlike and without the 
slightest savor of socialism or anarchy. The law of 
primogeniture was abolished in states where it had been 
adopted, merely for the purpose of securing a division 
of the land among the children of the man who owned 
the land. Many of the provisions of our public land 
laws are drawn to discourage the union of large tracts 
in one ownership, and to encourage small holdings. 

BEST REMEDY TO BE FOUND IN STATE LEGISLATION 

The State legislatures have complete control of what 
shall be done with a man's property on his death. He 
has no right to leave it by will and his children or 
heirs have no right to receive it which the legislatures 
may not modify or take away. The States, therefore, 
can best remedy the dangers of too great accumulation 
of wealth in one hand by controlling the descent and 
devolution of property and they ought to do so. They 
can adopt the French method, which requires the di- 
vision of a large part of a man's fortune between all 
his children and gives him absolute power with respect to 
only a fraction. This would secure a division in the 
second generation and a probable change for the bet- 
ter in respect to such fortunes. Many of the States 



THE PRESENT ADMINISTRATION 187 



have already and properly adopted a graduated in- 
heritance tax which not only reduces the great fortune 
but lessens the motive for its accumulation. 

FEDERAL GOVERNMENT MAY PROPERLY LEND ITS AID 

FAVORS GRADUATED INHERITANCE TAX 

Federal action for a Federal end may legitimately 
have an indirect effect to aid the States in reforms pecu- 
liarly within their cognizance. When, therefore, the 
Government revenues need addition, or readjustment, I 
believe a Federal graduated inheritance tax to be a 
useful means of raising government funds. It is easily 
and certainly collected. The incidence of taxation is 
heaviest on those best able to stand it, and indirectly, 
while not placing undue restriction on individual effort, 
it would moderate the enthusiasm for the amassing of 
immense fortunes. 

INCOME TAX 

A graduated income tax would also have a tendency 
to reduce the motive for the accumulations of enormous 
wealth, but the Supreme Court has held an income tax 
not to be a valid exercise of power by the Federal Gov- 
ernment. The objection to it from a practical stand- 
point is its inquisitorial character and the premium it 
puts on perjury. In times of great national need, how- 
ever, an income tax would be of great assistance in fur- 
nishing means to carry on the government, and it is not 
free from doubt how the Supreme Court, with changed 
membership, would view a new income tax law under such 
conditions. The Court was nearly evenly divided in 
the last case, and during the Civil War great sums were 
collected by an income tax without judicial interference 
and, as it was then supposed, within the Federal power. 



188 THE LEGISLATIVE POLICIES OF 



DOES NOT FAVOR IMMEDIATELY SUCH FEDERAL LEGISLA- 
TION BUT ON NEXT READJUSTMENT OF 
REVENUES 

I do not favor Federal legislation now to reduce such 
fortunes either by a constitutional amendment to per- 
mit an income tax or by a graduated inheritance tax, 
but whenever the Government revenues need an increase 
or readjustment, I should strongly favor the imposition 
of a graduated inheritance tax and, if necessary for 
the revenues, a change in the constitution authorizing 
a Federal income tax, with all the incidental influence of 
both measures to lessen the motive for accumulation. 

The suppression of monopolies and the abolition of 
secret rebates and discriminating privileges by the rail- 
roads, will lessen the possibility of such enormous ac- 
cumulations as those which have already taken place. 
The evils of too great concentration of money or of 
any kind of property in a few hands are to be best 
remedied by the gradual effect of a long course of 
legislation and not by measures, having an immediate 
and radical effect, that are apt to involve injurious 
consequences to the general business community. 

AFTER A REVIEW OF PRESIDENT ROOSEVELT 's POLICIES, 
CONCURS IN THEM 

I have thus reviewed at great length what have 
properly come to be known as President Roosevelt's 
policies and have discussed them with what I hope you 
will think is entire candor. I have attempted to point 
out one or two instances in which I would qualify details 
of future policies which he has sketched, but with these 
minor exceptions as to method, I am glad to express my 
complete, thorough, and sincere sympathy with, and 



THE PRESENT ADMINISTRATION 189 



admiration for, the great conserving and conservative 
movement which he has with wonderful success initiated 
and carried so far against bitter opposition, to remedy 
the evils of our prosperity and preserve to us the insti- 
tutions we have inherited from our fathers. 

CRITICISM THAT MR. ROOSEVELT 's . POLICIES ARE SOCIAL- 
ISTIC ABSURD 

Critics of President Roosevelt denounce his policies 
as socialistic and likely to impair the institution of pri- 
vate property. The institution of private property next 
to that of civil liberty is the most important factor in 
all that is good in modern society. It is indispensable 
to individualism and is one of the two chief means by 
which man raised himself from a low estate near to 
that of the beasts of the field to his present condition. 
But if the people are not convinced that it is possible 
to eradicate the evils and abuses arising from the un- 
scrupulous use of wealth and corporate combination 
under the system of private property, the movement to- 
ward its abolition and the adoption of socialism in some 
form will gain great strength. President Roosevelt 
would stop this movement by a demonstration that it 
is possible under the system of private property, by 
efficient Government regulation, supervision and prose- 
cution, to stamp out the evils which have created our 
social unrest. He knows what a futile remedy social- 
ism will prove to be. Socialism looks to a dead level 
of life, to an absence of all motive for material prog- 
ress, to a stagnation in everything. It involves a lack 
of individual freedom and requires an official tyranny 
to carry out its system that finds no counterpart in 
modern Government. It offers no real remedy for the 
evils that appear from time to time as the accompani- 



190 THE LEGISLATIVE POLICIES OF 



ment of our progress. And yet, President Roosevelt 
knows and everyone must realize, the plausible force 
with which socialistic doctrines can be pressed upon a 
discontented people who see real wrongs in the body 
politic and social. 

POLICIES FEAMED TO DEFEAT SOCIALISM 

For this reason, he takes the most conservative 
course in insisting on adopting measures entirely con- 
sistent with the principle of private property in order to 
stamp out the evils which have attended its abuse. 
There is nothing either radical or severe in the reforms 
he proposes. What is there in the tenet of private 
property that prevents close government regulation of 
the exercise of a public franchise like that of inter- 
state railways, or the enactment of criminal laws or 
civil procedure to restrain the evils which result from 
the improper use of the right of property in combina- 
tions of capital to suppress competition and to monopo- 
lize trade, or the adjustment of tax laws or laws of 
descent in such a way as to reduce the motive for 
accumulating fortunes so great that the power they 
give their individual owners is politically dangerous? 

THE RAILROADS NOT MR. ROOSEVELT RESPONSIBLE FOR 

RESTRICTIVE STATE LEGISLATION 

The critics I have referred to are in the habit of 
charging to Mr. Roosevelt responsibility for all the 
recent State legislation looking to the restraint of cor- 
porations and especially for that which cuts down the 
passenger rates on State railways. This is most unjust, 
for whether such legislation is proper or oppressive, the 
impetus that carried it into law was given not by 
Mr. Roosevelt but by the evils that he has been at- 



THE PRESENT ADMINISTRATION 191 



tempting to remedy within the Federal jurisdiction. If 
the State measures are unjust to the property rights 
of the railways, they may be corrected in the courts. If 
they are unwise, they will react against the communi- 
ties in which they operate by making the service poorer 
and in other ways, and the reaction will lead to their 
repeal. The railways can blame no one but themselves 
if the revelation of their flagrant violations of law and 
of their unjust administration of a public trust have 
led to an outburst of popular indignation and have 
brought on temporary excess. 

SLUMP IN WALL STREET PRICES NOT DUE TO PRESIDENT'S 

POLICY 

Again, every time that there is a fall in the prices 
of stocks in Wall Street, those who are injuriously af- 
fected condemn the President with great bitterness as 
responsible for their losses. Just at present there has 
been a very serious depression in the values of market- 
able securities, and it is said that the President's atti- 
tude toward corporations has been the cause of this. 
Such critics fail to observe that there has been a similar 
decrease in the marketable value — not only of railway 
stocks but of Government consols abroad, and that there 
is a stringency in the markets of the world. But more 
than this, if the prosecution of dishonesty and illegal 
practices, like the giving and taking of rebates and the 
destruction of competition by monopoly, is to injure the 
market for stocks on the stock exchange, then this is a 
burden that must be borne and must be charged — not to 
the head of the nation, whose duty it is to enforce the 
law, but to the violators of the law whose pursuit of 
criminal methods has been so successful and far-reach- 
ing as to make their prosecution a serious threat against 



192 THE LEGISLATIVE POLICIES OF 



the stability of the market. It is not true that the 
President is engaged in a raid against all corporations. 
It is not true that he proposes to rip up past transac- 
tions, when by reason of the injury to innocent pur- 
chasers such a course would do more injustice than 
good. His only policy and sworn duty is to prosecute, 
with the fullest vigor, the corporations and individuals 
whose flagrant violations of the laws make it necessary 
to do so, in order that complete reform may be effected 
in our business methods with respect to the evils which 
I have described. 

radical differences between mr. roosevelt^ and 
mr. bryan's theories of government 

These same critics like to say that Mr. Roosevelt has 
" out-Brj^aned " Mr. Bryan in his policies and Mr. 
Bryan has lent color to this saying by the claim that he 
was their original inventor. No one who has given the 
slightest attention to the attitude of Mr. Roosevelt and 
Mr. Bryan upon the social and political questions of 
the day can for a moment miss the radical difference 
between the two. 

MR. ROOSEVELT'S TRUST IN BOTH PEOPLE AND 
INDIVIDUALS 

Mr. Roosevelt believes not only in the people but also 
in the individual as the unit who, multiplied, makes 
up and gives quality to the people. He thinks that there 
is no royal road to the elevation of a people but by 
the improvement in the intelligence and moral character 
of the individual. He believes in the possibility of the 
individual's being honest, courageous and just and able 
to resist the influence of " the money power " to wean 
him from the path of duty. He believes that the people 



THE PRESENT ADMINISTRATION 193 



can select individuals who may be trusted, as public 
officers — executive, legislative and judicial — to wield, 
1 without abuse and in the interest of the people, the 
powers needed to conduct an efficient government. He 
has faith in the maintenance of an honest, courageous 
and efficient representative popular legislature that 
will give the rich and poor equal protection and oppor- 
tunity before the law. 

mr. roosevelt's belief in strong and efficient 
government 

Mr. Roosevelt believes in the necessity for a strong 
government that can and will make both rich and poor 
obey the law, and he would have the officers charged with 
its maintenance render due account of their steward- 
ship to their masters, the people. Mr. Roosevelt knows 
no favorite in matters of lawlessness, be he rich or poor, 
corporation president or member of a labor union. 
The courts must be strong enough to restrain them all. 
Mr. Roosevelt believes our present government the best 
one possible for us and in every way adapted to the 
genius of our people. He has the utmost confidence in 
the capacity of the people through their representatives, 
and by the means provided in the Constitution by our 
fathers, to remedy the evils that arise in our material 
progress. 

mr. bryan's theories based on distrust of individual 
and failure of representative government 

Mr. Bryan's whole system of remedies, on the other 
hand, for the evils that both Mr. Roosevelt and he 
and many others recognize, is based on his distrust of 
the honesty, courage and impartiality of the individual 
as an agent on behalf of the people to carry on any part 



194 THE LEGISLATIVE POLICIES OF 



of government, and rests on the proposition that our 
present system of representative government is a fail- 
ure. He would have government ownership of railways 
because he does not believe it is possible to secure an 
interstate commerce commission that the " money 
power " can not and will not ultimately own. He would 
have the initiative and referendum because he distrusts 
representative government and has no confidence in the 
ability of the people to find men who will conscientiously, 
and free from the influence of " the money power," rep- 
resent them in preparing and voting legislation. Be- 
cause he distrusts the ability of judges to resist the 
malign influence of the " money power," he would take 
away from courts the power to enforce their own 
orders until a jury is called to tell the court whether 
the order has been disobeyed, and thus, in practice, 
though not in theory, the jury would come to pass on 
the correctness and justice of the court's order. 



MR. BRYAN SEEKS JUDICIAL PROCEDURE THAT WILL RE- 
STRAIN WEALTHY WRONGDOER BUT WILL GIVE 

FREEDOM OF ACTION TO LAWLESS POOR 

INSTANCE OKLAHOMA CONSTITUTION 

Mr. Bryan seems to be seeking some system of ad- 
ministering law under which the rich wrongdoer shall 
be certainly restrained, while the lawless poor shall 
escape. He would have his judicial machinery ad- 
justed to restrict the violations of law by a corporation 
but would give freedom of action to the lawless members 
of a labor union. Indeed in the constitution of Okla- 
homa, which he says is the greatest constitution ever 
written, this anomaly prevails. No one can be pun- 
ished for violating an order of injunction or restraint 



THE PRESENT ADMINISTRATION 195 



except after a verdict of a jury deciding that the vio- 
lation was committed, and v*t in the same constitution, 
a corporation commission of an executive and adminis- 
trative character, a body of laymen, authorized to 
make orders against railroads and other corporations 
is empowered, if its orders are not obeyed, to change 
itself into a court and after giving due process of law 
by a hearing to enforce its own orders by a fine of $500 
a day until the order is performed. 

SUCH DISCRIMINATION IMPOSSIBLE OFFERS IMMUNITY 

TO RICH 

Such a discrimination in practical legislation can not 
be maintained for a moment. Courts and judicial pro- 
cedure are made for all and must operate equally for 
and against all. The only method by which wealthy 
and powerful malefactors can be restrained is by main- 
taining the power of the courts, and the minute the 
power of the court is weakened in the supposed interest 
of the lowly and unfortunate accused of wrongdoing, 
the lawless rich are furnished the immunity they seek. 
The wealthy wrongdoers could easily escape the re- 
straint of the law through the rents in its meshes Mr. 
Bryan would make for the benefit of those with less 
influence and means. 

mr. bryan's a weak and nerveless government 

In all his proposed reforms, Mr. Bryan seems to give 
little attention to securing efficiency and force in gov- 
ernment so that the evils he recognizes may be sup- 
pressed. The government which his system of remedies 
would tend to produce would be nerveless. Estopped 
by his own expressed fear of power put in the hands of 



196 THE LEGISLATIVE POLICIES OF 



any individual, he would find difficulty in wielding it 
when most needed. 

ABSURDITY OF NATIONAL REFERENDUM 

The representative government that has served us 
well for 130 years has not been for Mr. Bryan suffi- 
ciently expressive of the will of the people. Election 
of Senators by the people is not enough for him. We 
must call upon fourteen million electors to legislate 
directly. Could any more burdensome or inefficient 
method be devised than this? I believe that a referen- 
dum under certain conditions and limitations in the sub- 
divisions of a State on certain issues may be healthful 
and useful, but as applied to our national government 
it is entirely impracticable. If it is difficult for the 
people to use proper judgment in the concrete question 
of the personality of the representatives they are to 
select to carry on their national government, as Mr. 
Bryan's theory assumes, how much more difficult for 
them to give sufficient attention to the settlement of the 
many questions of policy and procedure in complicated 
statutes which the people have always been willing to 
leave to the decision of their representatives, skilled in 
the science of legislation, whose general views on the 
main political issues of the day are well understood. 
Think of the possibility of securing a vote of fourteen 
millions of electors on the 4,000 items of a tariff bill. 
The opportunity to retire a representative who fails to 
be truly representative is all that the people wish and 
need to enforce their will. 

Certainly it is difficult for an impartial observer to 
find anything in the actual government of Mr. Roose- 
velt that harmonizes with that which would be the gov- 
ernment under Mr. Bryan if he could carry out his 



THE PRESENT ADMINISTRATION 197 



theories. Mr. Roosevelt is doing everything in his 
power to avoid the condition which Mr. Bryan's theories 
when put in practice would bring about. 

THE PROTECTIVE TARIFF ITS REVISION ITS RELATION 

TO TRUSTS 

I come now to the question of the tariff, its revision, 
and its relation to the unlawful trusts. The Dingley 
tariff was adopted immediately after the election of Mr. 
McKinley. Since that time we have passed through 
the Spanish war and have had a decade of prosperity 
and an increase and expansion of trade unexampled in 
the history of this or any other country. The Repub- 
lican principle of the protective tariff is, as I under- 
stand it, that through the customs revenue law a tariff 
should be collected on all imported products that com- 
pete with American products, which will at least equal a 
difference in the cost of production in this country and 
abroad, and that proper allowance should be made in 
this difference for the reasonable profits to the American 
manufacturer. The claim of Protectionists, and it has 
been abundantly justified in the past, is that protection 
secures a high rate of wages and that the encourage- 
ment it gives to the home industry operating under the 
influence of an energetic competition between Ameri- 
can manufacturers, induces such improvement in the 
methods of manufacture and such economies as to re- 
duce greatly the price for the benefit of the American 
public and makes it possible to reduce the tariff without 
depriving the manufacturer of needed protection and 
a good profit. 



198 THE LEGISLATIVE POLICIES OF 



BUSINESS SYSTEM RESTS ON PROTECTIVE TARIFE FREE 

TRADE REVISION DISASTROUS 

The present business system of the country rests on 
the protective tariff and any attempt to change it to 
a free trade basis will certainly lead only to disaster. 

DUTY OF REPUBLICAN PARTY TO PREVENT EXCESSIVE 
TARIFF RATES 

It is the duty of the Republican party, however, to 
see to it that the tariff on imported articles does not 
exceed substantially the reasonably permanent differ- 
ential between the cost of production in the foreign 
countries and that in the United States, and therefore 
when changes take place in the conditions of produc- 
tion likely to produce a very large reduction in the cost 
of production in the United States, it is time that 
schedules be re-examined and if excessive that they be 
reduced so as to bring them within the justification for 
the rule, by which the amount of tariff to be imposed 
under the protective system is properly determined. 

TEMPTATIONS TO MONOPOLY IN RATES EXCEEDING PRO- 
TECTIVE PRINCIPLE 

Whenever the tariff imposed is largely in excess of 
the differential between the cost of production in the 
two countries, then there is formed at once a great 
temptation to monopolize the business of producing the 
particular product, and to take advantage of profit in 
the excessive tariff. This denies to the people alto- 
gether the economies of production that competition 
under a protective tariff should develop. 



THE PRESENT ADMINISTRATION 199 



REASON FOR THINKING SOME SCHEDULES EXCESSIVE 

In the enormous progress in the manufacturing 
plants and the improvement in methods which have been 
brought about in the last ten years in this country, 
there is the strongest reason for thinking that in many 
industries the difference between the cost of production 
in this country and abroad has been reduced. This is 
an opinion of mine formed a priori because I am a sin- 
cere believer in the efficacy of the protective system 
ultimately to cheapen the cost of production. The 
opinion has been confirmed by conversation with manu- 
facturers and others who knew something of what they 
speak. 

CONFIRMATION BY ACTION OF NATIONAL ASSOCIATION OF 

MANUFACTURERS 

I am not myself a tariff expert and am not suffi- 
ciently familiar with the cost of production of the 
various articles covered in the many schedules to point 
out the particular ones in which such a change has taken 
place; but my general conclusion formed as above finds 
striking support in the action of the National Associa- 
tion of Manufacturers of the United States upon this 
very question. A committee appointed by that body 
for the purpose, investigated the question whether the 
tariff had not in respect to many articles by a change 
in conditions become excessive. 

ASSOCIATION ALE PROTECTIONISTS 

This National Association of Manufacturers is com- 
posed almost wholly of protectionists, and I think we 
may safely say, therefore, of Republicans. I am ad- 
vised that the Association represents all classes of man- 



200 



THE LEGISLATIVE POLICIES OF 



ufacturers in this country and that a majority of the 
manufacturers of consequence are members. The com- 
mittee reports : 64 We are all Protectionists — there are 
a very few brilliant exceptions, but so few that we may 
repeat the statement, 6 We are Protectionists.' " The 
committee lays down in its report the following doctrine, 
which seems to me of the orthodox Republican type: 

" Protection, as the word implies, requires that the 
Tariff Schedules be such as protect our manufacturers 
against undue pressure from foreign competition, and 
maintain our high wage scale and standard of living. 
The minimum measure of protection is, therefore, as 
President Roosevelt said, 6 The difference in the cost of 
production in this country and abroad.' These Pro- 
tective Schedules, thus figured, must carry with them a 
very ample margin for safety. It must make full al- 
lowance for the possibility of hard times abroad and 
good times here; for dumping, and all other contingen- 
cies. This done, it is truly protective; and it is only 
so, as it covers these features and nothing more." 

MANY SCHEDULES EXCESSIVE 

After referring to the fact that there were some 
articles in which the tariff was hardly high enough, the 
conclusion of the committee was stated as follows: 

" Confining ourselves to the protective principle, we 
find many schedules — some of them upon the prime 
necessities of life — returning the Government no revenue 
of consequence, and yet under the claims of the pro- 
tective theory, bearing a tariff schedule — not merely 
equal to the difference in the cost of production here 
and abroad, with all reasonable contingencies allowed 
for — but decidedly in excess of the total wage cost of 
production in this country. 



THE PRESENT ADMINISTRATION 201 



" We find some of these schedules many times in excess 
of the difference between the cost of production here 
and abroad. We find that individuals who are at the 
top, both in stock holdings and in management in some 
of these same industries, declare privately that these 
schedules are wrong, and that the best interest of those 
industries themselves, as well as the interests of the 
country at large, require adjustment at the earliest 
possible moment. They say that now is the time for 
revision, while the country is so prosperous that adjust- 
ment may easily be made to new conditions." 

VOTE OF ASSOCIATION 

In that body of members of 1,800—350, or 20 per 
cent., were radically opposed to revision ; 8 per cent, 
were opposed to revision at this time lest it unsettle 
business ; 55 per cent, wished revision ; and 17 per cent, 
were indifferent or uninformed. Taken by industries, 
out of 77 different industries tabulated, 56 voted for 
revision, casting a total of 1,510 votes; 16 industries 
voted against revision, casting a total of 102 votes; 5 
industries were each tied in their votes, casting a total 
of 28 votes. 

The Association then by resolutions passed by a large 
majority declared itself in favor of a revision of the 
tariff at the earliest practicable date. 

SIGNIFICANCE OF THIS REPORT AND ACTION SHOULD BRING 
MATTER BEFORE CONGRESS FOR INVESTIGATION 

I have not cited the report or action of the National 
Association of Manufacturers as conclusive upon the 
character of the present schedules, nor do I assume that 
the manufacturers of the country embrace all the classes 
who are interested in maintaining the protective system, 



202 THE LEGISLATIVE POLICIES OF 



for I fully recognize that other classes, especially the 
farmers, are vitally concerned in some of the schedules. 
All that I maintain is that when after a tariff law has 
been in force ten years and a representative body of 
protectionists in principle and in interest, whose busi- 
ness makes them familiar with the facts and who have 
no motive for misrepresentation, adopt such a report 
as the one I have quoted from, it makes a case for inves- 
tigation into the existing tariff by Congress for the 
purpose of determining how much revision is needed. 

SCHEDULES FOR COMMITTEES AND CONGRESS, 

The investigation in the end will be conducted by the 
Committee of Ways and Means of the House of Repre- 
sentatives and by the Finance Committee of the Senate. 
The schedules are for them to recommend and for Con- 
gress to fix after they hear evidence of the cost of pro- 
duction in this country and the cost of production 
abroad, and the conditions existing in each trade, and 
if it shall turn out that popular opinion founded on 
such substantial evidence as that which I have cited 
here should prove to be unfounded, then the revision of 
the tariff will be confined to minor inequalities. But if 
the result of the investigation justifies the report of the 
National Association of Manufacturers, then the revi- 
sion of the excessive schedules should be substantial, and 
the motive for the organization and maintenance of un- 
lawful trusts to monopolize the manufacture and sale 
of articles in such schedules will be taken away. 

PROSPERITY ARGUMENT AGAINST REVISION 

Objection is made to revision on the ground that we 
are enjoying business prosperity, that this will be dis- 
turbed by a proposal to change the tariff, and that we 



THE PRESENT ADMINISTRATION 203 



should wait until hard times before we revise. I can not 
follow the argument. The revision proposed is to be 
by the Republican party and is not to be a departure 
from the protective principle but in conformity with it. 
It will affect only those persons injuriously who are 
making an unreasonable profit out of an excessive rate. 
The present prosperity is not dependent on such a profit. 
If it were, then it would not be the prosperity of the 
whole business community, but only of a few unduly 
favored at the expense of the community. In the pres- 
ent temper of the people, general prosperity has not 
prevented the remedying of other abuses and injustice. 
I don't know why it should prevent this. 

CONTROLLING REASONS FOR DELAY IN REVISION TILL 
AFTER PRESIDENTIAL ELECTION 

I had occasion in a speech which I delivered at Bath, 
Me., now about a year ago, to express my individual 
opinion as in favor of an immediate revision of the 
tariff, but I there pointed out, and I only refer to it to 
repeat it and emphasize it, that the revision of a tariff 
involves so many different interests the country over 
that it could not be undertaken successfully by the Re- 
publican party, and therefore ought not to be under- 
taken at all, until the party as a whole is in favor of it. 
I ventured to express the opinion that the sentiment in 
favor of a revision in the Republican party was crystal- 
lizing to such a point that in a short time we might 
expect to have action upon the subject. What has 
happened in the last year has only served to confirm 
the view I then expressed, and it now seems to me that 
even most of the extremists in the matter of the tariff 
are of opinion that it would be not only unwise, but 
unsafe, for the party to fail in its next national plat- 



204 THE LEGISLATIVE POLICIES OF 



form to pledge itself to a revision of the tariff as soon 
after the next Presidential election as possible. Those 
of us who favor immediate revision can well afford to 
wait until after the next Presidential election in order 
to secure substantial acquiescence by all Republicans. 
Certainly a delay of action for eighteen months ought 
to furnish a reason for no protectionist to invite the 
certain business disaster that Democratic revision on 
free trade lines would involve. More than this, full time 
should be given for the operation of a new tariff upon 
the business of the country before the people express 
their opinion of it. The passage of a bill by the next 
Congress would mean the consideration by Congress of 
the tariff in the midst of a Presidential campaign with 
all the opportunity for misrepresentation of its effect 
which its practical operation for a year or more would 
refute. Furthermore, with a Presidential election four 
years removed, we can count on a revision less affected 
by political considerations than if made in the heat of a 
national campaign. 

OTHER SUBJECTS OMITTED 

There are other subjects I should like to discuss — 
Porto Rico, Cuba, the Philippines, Santo Domingo, the 
Navy, the Army and our foreign policy, the race ques- 
tion and the war amendments, and the order of the 
President dismissing one hundred and seventy men of 
the 25th Infantry. 

BROWNSVILLE ORDER 

The attitude of the President and the War Depart- 
ment and the reasons for the action taken in respect to 
the 25th Infantry were sufficiently set forth in the com- 
munications by the President and by me, sent to Con- 



THE PRESENT ADMINISTRATION 205 



gress with the evidence then taken. Since that time, 
the Senate Committee on Military Affairs has taken 
3,200 printed pages of evidence in the same matter, 
and the hearing is not concluded. Until the hearing 
is closed and the Committee makes its report, it would 
be premature for me, in view of my official relation to 
the matter, to express an opinion as to the effect of the 
Senate evidence on the issue which the President de- 
cided. The other topics I must pass over for lack of 
time. 

ADVANTAGES OF REPUBLICAN PARTY IN LEADERSHIP OF 
PRESIDENT ROOSEVELT 

I can not close without comment on the position of 
advantage for the coming National campaign which 
President Roosevelt, by the intense earnestness, vigor, 
courage and success with which he has pressed the re- 
forms that rightly bear his name, has secured to the 
Republican party. A trimming, do-nothing, colorless 
policy in face of the proof of business, railway and 
corporate abuses would certainly have driven the party 
from power, however little responsibility for them could 
be justly charged to it. It was not political advantage 
which the President sought in these reforms but the real 
betterment of conditions which he has effected. Still 
the belief of the people in his sincerity, his courage and 
his amazing quality for doing things on their behalf 
has won for him a hold on the American public, at which 
even his bitterest opponents marvel and which finds few 
if any parallels in the political history of this country. 
Fortunate a party with such a leader. 



THE PANIC OF 1907 



delivered before the merchants association of 
boston, massachusetts, december 30, 1907 

Gentlemen of the Merchants Association of Bos- 
ton: I am glad to be here. For more than two years 
I have been trying to accept your kind invitation. I 
do not feel strange in this New England company. My 
father was born in Vermont. My mother was born in 
Boston ; my two grandfathers were born in Mendon, 
Worcester County; much of my boyhood was spent in 
Millbury, and I was educated at Yale. While I can 
not claim to be one of you, I like to boast that I have 
enjoyed the good influence of the same traditions. 

I had expected to talk to you about the Philippines 
to-night. That was one of the reasons why I accepted 
the invitation so lightly. It is a subject easy for me 
to talk about. It may be it is getting a little stale. 
For instance, I have found that one of the best methods 
of discouraging my friends, the correspondents of the 
press in Washington, from pursuing embarrassing in- 
quiries into other matters, is to insist on discussing 
with them for publication interesting phases of the 
Philippine situation. They leave forthwith. But I 
had supposed that, however dead the Islands might be 
as a topic inviting discussion and attracting attention 
elsewhere, one could rouse some excitement over it still 
in Boston. I have been warned, however, that here, too, 
there were subjects more absorbing, at least for business 
men. So, when I was honored by an invitation for this 
morning, to address the Ministers of Boston, whose pro- 
fession carries them naturally into a consideration of 

206 



THE PANIC OF 1907 



207 



other worlds, I said my say in respect to the Philippines, 
and the, to me, very absorbing national problem, which 
I hope and believe we are working out successfully. It 
follows that for this company, I must find another 
subject. 

During the last three months, the country has suffered 
from a severe monetary panic. Even yet the clearing- 
house certificates linger in your bank exchanges as em- 
phatic evidence of its severity and the extreme measures 
which had to be taken to avoid greater disaster. Doubt- 
less many of my hearers have not yet recovered from the 
intense nervous strain and mental suffering to which 
they have been subjected since the middle of October. 
The panic has been given a certain political bearing 
and importance. For this reason, I have selected as my 
topic of to-night: 

THE PANIC OF 1907, ITS CAUSES, ITS PROBABLE EFFECTS, 
AND THE RELATION TO IT OF THE POLICIES 
OF THE NATIONAL ADMINISTRATION 

What did cause the panic? Writers upon financial 
subjects who have given their lives and constant atten- 
tion to matters of this kind, who are able to institute a 
comparison of the present panic with previous panics, 
and who are entirely familiar with the conditions preced- 
ing all of them, substantially agree upon the causes^JPan- 
ics and industrial depressions are the result of the char- 
acteristics of human nature, which manifest themselves 
in business as elsewhere. The world generally has a 
certain amount of loanable capital available for new 
enterprises or the enlargement of old ones. 

In periods of prosperity this capital with the in- 
strumentalities for enlarging its potentiality by credits 
is put into new enterprises which are profitable, and the 



208 



THE PANIC OF 1907 



increase in free capital goes on almost in arithmetical 
progression. After a time, however, expenses of opera- 
tion and wages increase and the profit from the new 
enterprises grows smaller. The loanable capital gradu- 
ally changes its form into investments less and less con- 
vertible. Much of that which might be capital is 
wasted in unwise enterprises, in extravagance in living, 
in wars and absolute destruction of property, until the 
available free capital becomes well-nigh exhausted the 
world over, and the progress of new enterprises must 
await the saving of more. Men continue to embark in 
new enterprises, however; the capital fails them, and 
disaster comes. \ 

For eight or nine months last past, there were many 
indications that the loanable capital of the world was 
near exhaustion. This result was brought about not 
only by the enormous expansion of business plants and 
business investments, which could not be readily con- 
verted, but also by the waste of capital in extravagance 
of living and by the Spanish war, the Boer war, and the 
Russian-Japanese war, and in such catastrophes as 
Baltimore and San Francisco. It became impossible 
for the soundest railroads and other enterprises to bor- 
row money for new construction or reconstruction. The 
condition was not confined to this country, but extended 
the world over and was made manifest in the countries 
of Europe even before it was felt here. 

Secondly, the conclusion cannot be avoided that the 
revelations of irregularity, breaches of trust, stock- job- 
bing, over-issues of stock, violations of law, and lack of 
rigid State or National supervision in the management 
of some of our largest insurance companies, railroad 
companies, traction companies and financial corpora- 
tions shocked investors and made them withhold what 



THE PANIC OF 1907 



209 



little loanable capital remained available. Such dis- 
closures had much more effect, probably, abroad than 
they had here, because here we were able to make dis- 
tinctions, while there, at a remote distance, the revela- 
tions created distrust in our whole business fabric. 

When, therefore, two or three institutions, banks and 
trust companies, supposed to be solid, were found to 
have their capital impaired by stock- j obbing of their 
officers, the public were easily frightened and the run 
upon the banks began. The question then became not 
one of loanable capital but of actual money to be used in 
the transactions of the day, — a very different question, 
though, of course, closely related. 

It would seem that our system of currency is not ar- 
ranged so as to permit its volume to be increased tempo- 
rarily to counteract the sudden drain of money by the 
hoarding in a panic. It is probable that the stringency 
which reached its height on that dark day of October 
twenty-fourth, might, in part, have been alleviated, had 
we had a currency which could automatically enlarge 
itself to meet the tremendous demand of a day or a week 
or a month, while public confidence was being restored. 
The National Administration, together with many of 
the large capitalists of New York and elsewhere, put 
their shoulders under the load and by various devices of 
an unusual character have brought about the present 
condition of gradually increasing confidence. 

The injurious consequences to follow from this panic 
are not likely to be so long drawn out, or to result in 
such disastrous industrial depression, as the panic of 
1893, or the panic of 1878, and this, for the reason 
that the condition of the country makes it so much 
easier to resume business gradually, to accumulate capi- 
tal, and then to renew the enterprises which had to be 



210 



THE PANIC OF 1907 



abandoned for lack of it. In the first place we have a 
gold currency with no suggestion now of a departure 
from the gold standard. In 1893, the pressure for free 
silver was on, and the threat of National repudiation 
had much to do with the delay in the return to pros- 
perous times. Our Government finances now are in ex- 
cellent condition and we have a large surplus. Our 
farming communities in the West to-day are not under 
the weight of mortgages and of debt which distressed 
them in 1893 and in 1873. They are prosperous and 
wealthy. 

Again, the railroads, which make up a large part of 
the wealth of this country, are on a much solider 
foundation than they were in 1893. Then many of 
them had to be taken into the hands of receivers and im- 
mense amounts expended by means of receivers' certifi- 
cates, displacing and destroying the value of vested 
securities in order to put roads in a safe and income- 
earning condition. The railroads to-day are in a better 
physical condition than they have ever been in their 
history. But few of them have recently been built into 
new territory in which business has to be created by 
introducing a new population. 

Again, the balance of trade is with us. We were able 
to settle for the hundred millions of gold that we with- 
drew from Europe in order to meet the demand for 
money in the markets in New York by the excess of our 
exports over our imports in the single month of October. 

All these things point to the probability of a restora- 
tion of confidence and, after a proper liquidation and an 
industrial depression of some months, to a resumption 
of business on a normal basis. 

Modern business is conducted on a system of credit 
which, in normal times, increases the facility with which 



THE PANIC OF 1907 



211 



the work of manufacture, production and sale can be 
carried on, a thousand-fold beyond the limit of earlier 
days, and enables a total of many billions to rest on a 
very small percentage of actual money passed. Every 
manufacturer, every merchant, is, under modern condi- 
tions, dependent in the successful conduct of his busi- 
ness upon bank credits extended at regular seasons. The 
banks themselves in turn acquire the means of granting 
these credits largely from the money of their depositors. 
And in loaning from their deposits, the banks rely on 
the improbability that more than a certain part of the 
deposits will be called for at any one time. A lack of 
public confidence in the banks creates a common desire 
among bank depositors to withdraw their money. The 
fright which seizes the creditor — the depositor — and 
leads him to hoard his money, spreads like wildfire and 
is as unreasoning and unreasonable as the spirit of a 
mob. A run on the banks ensues. The banks then call 
on their debtors, and the tremendous structure depend- 
ing upon credit tumbles. Meantime, men who properly 
count themselves as millionaires, who are honest, con- 
servative, solid business men always responding to their 
obligations, find themselves as helpless under such a 
financial cataclysm as they would be in an earthquake. 

Gradually, reason resumes its sway, but the injury to 
credit and the blow which has been struck at the normal 
business progress has more or less permanence. Values 
have shrunk, plans for new and increased business enter- 
prises must be abandoned, and liquidation and house- 
cleaning take place. The business men who have had 
to stand the strain — who have seen their fondest hopes 
crushed, and have only been able to come through the 
crisis with the greatest effort and most substantial 
financial loss — are naturally sore and depressed. They 



THE PANIC OF 1907 



believe, and generally they are right, that this disaster 
has come upon them without fault of theirs. It is un- 
just to them. No matter how many symptoms of the 
coming trouble there may have been, panics always 
come with a shock and a tremendous surprise and dis- 
appointment. And hardly is the panic over but a fierce 
discussion arises as to the cause of its coming. With 
various motives, editors and public speakers rush to the 
front to fasten upon some thing or some one the respon- 
sibility for what has happened. It is entirely natural 
that, in the condition of mind in which the suffering 
business men are left by the great strain and trial, such 
suggestions should receive marked attention and that 
the more definitely the personality of the scapegoat can 
be fixed, the more pleasure it gives the victims of the 
catastrophe. 

This mental attitude of the business community which 
I have described as likely to be found after every fi- 
nancial panic is clearly present to-day. The economic 
and political history of the last four years gives it 
especial importance, because it offers to certain elements 
in the business and political community an exceptional 
opportunity. Let me invite your attention to that his- 
tory. It is one of a giant struggle between the Na- 
tional Administration and certain powerful combina- 
tions in the financial world. These combinations, for 
lack of a better name, are called " trusts." They en- 
gaged in different lines of manufacture and production, 
and by assembling large amounts of capital into one 
mass in a particular line of business, managed, by artful 
and skillfully devised but illegal methods of duress, to 
exclude competition and monopolize the trade. They 
became the dictators to great railroads, however power- 
ful, and by threatening a withdrawal of patronage se- 



THE PANIC OF 1907 



213 



cured unlawful and discriminating rebates, greatly in- 
creasing their profits, and still more completely sup- 
pressing competition. Managed with conspicuous 
business ability, these trusts went into legitimate for- 
eign trade and largely increased our country's exports. 
The profits which they had realized enabled them to 
engage in other enterprises carried on by legitimate 
methods until the hold which they acquired in the busi- 
ness community gave them a position of vantage which 
it seemed hopeless to combat. The basis of their origi- 
nal success and the maintenance of their power was the 
violation of the Sherman Anti-trust law and the Inter- 
state Commerce law, and for a time both laws were but 
dead-letters upon the statute books of the United States. 
The purpose of the administration of Mr. Roosevelt 
was to make these men, however powerful and wealthy, 
to know that the laws upon the statute books were living 
things and must be obeyed. It was not proposed that 
the legitimate enterprises that were carried on with the 
capital of these men should be destroyed. It was not 
proposed that the foreign trade which inured to the 
benefit of the whole country should be struck down ; but 
it was determined that those who were making the 
statutes a dead letter should be subject to restraint by 
injunction processes and punishment by indictment — 
not as a matter of revenge — not to gratify the exercise 
of power, but to eradicate systematic lawlessness from 
our business system. In this struggle the Administra- 
tion has been greatly aided by the popular sympathy 
awakened by revelations as to breaches of trust by the 
managers of some of the great insurance companies ; 
by revelations as to mismanagement in the internal 
affairs of great railroad companies, by the disclosures 
as to the enormous amount of rebates extorted from 



214 



THE PANIC OF 1907 



the railroad companies by these trusts ; and by the con- 
scienceless stock-jobbing and over-issue of bonds and 
stocks shown to have occurred in the management of 
some of our great corporations. 

There was a moral awakening among the people, and 
the hands of the Administration were held up in the 
work which it was doing. On the other hand, the men 
and the interests which were the subject of attack were 
not idle. They had their partisans — guilty and inno- 
cent. The guilty, of course, wished to defeat the Ad- 
ministration by any means. The innocent were those 
who had become involved with trust magnates in legiti- 
mate business transactions and to whom the attitude of 
the Administration seemed one of general opposition to 
the whole business community. 

One of the great manifestations, one of the monu- 
ments in this moral progress, was the passage of the 
railroad rate bill. It met the opposition of many of 
the railroads, not because they were in sympathy with 
the trusts, for I think they in many respects had been 
more sinned against than sinning, but because they re- 
sented that close control, that rigid supervision which 
the public demanded, in view of the possibilities which 
the disclosure as to their past transactions revealed. The 
fight made by the Administration has been a noteworthy 
one. And now, after the victory has been won, after 
there has been introduced into the hearts of all men, and 
especially of those leaders, these trust managers and 
financial opponents of the administration, the fear of 
the law — the panic comes on. The trust magnates 
solidly intrenched with great financial resources are not 
the ones who suffer the most from it. It is the men who 
have had no such unlawful or fruitful method of making 
money — the great body of business men and the wage- 



THE PANIC OF 1907 



215 



earners. This is the feature of the panic that arouses 
one's deepest sympathy and regret. 

The agents and sympathizers and defenders of the 
trusts and others innocent, but mistaken, now rush for- 
ward to place the blame of the present conditions upon 
the Administration. They seek to use the panic as an 
argument for giving up the moral victory which has 
been won. Apparently they would take a retrograde 
step back to the conditions that existed five and six and 
ten years ago, when, unhampered by statute law, these 
trusts were building the financial bulwarks behind which 
they are now fighting. They rely upon the soreness 
and the mental strain and suffering, through which all 
the honest business men of the community have had to 
pass, as a golden opportunity for driving home their 
attacks upon the Administration and for paralyzing the 
onward movement toward supremacy of the law. 

I have set forth what I believe to be the real ex- 
planation of the panic. Let us examine the specifica- 
tions of our opponents now made to show that the 
Administration is responsible. In the first place, it is 
said that the policy of the Administration has been 
directed for the last four years against organized capi- 
tal, and that it has thereby frightened investors. I 
deny it. The course of the Administration has been 
directed against such organized capital as was violat- 
ing the statutes of the United States — and no other. 
It had every consideration and desire to aid and assist 
organized capital which was engaged in legitimate 
business. 

It is true that the execution of the policy of the Ad- 
ministration has involved the bringing to the light of 
public criticism the violations of law by influential and 
powerful corporations, and their prosecution. Through 



216 



THE PANIC OF 1907 



the investigations of National and State tribunals there 
have been revealed, as I have already said, breaches of 
trust, stock- jobbing, over-issue of stocks and misman- 
agement in some of our largest corporations. They 
have properly been severely condemned by all, including 
the President. Knowledge of these things doubtless 
affected our credit in Europe and hastened the panic; 
but those who are morally responsible for such a result 
are the guilty managers, not those who, in the course 
of their official duty, have made known to the business 
world the facts, and commented on them. 

It is said that the Administration has arraigned the 
whole business community as dishonest. I deny it. 
The President has condemned the law-breakers. He has 
convinced those who have unlawfully accumulated enor- 
mous powers and capital that they are not immune. 
He has put the fear of the law in their hearts. They 
have been acute enough to attempt to protect them- 
selves by giving the impression that his action has been 
directed against the whole business community. It is 
true that the business men of our community, as a whole, 
are honest, and their methods are sound. The Presi- 
dent has never said otherwise. Indeed, it is chiefly in 
the interest of the great body of honest business 
men that he has made his fight for lawful business 
methods. 

Again, it is said that the Rate Bill, for which the 
Administration is responsible, caused the present panic. 
Could anything be more absurd? The object of the 
Rate Bill was merely to bring the railroads under closer 
supervision of a tribunal which could act upon com- 
plaints of individuals suffering from their injustice. 
The immediate effect of its passage was the voluntary 
reduction of rates. Subsequently, under normal cir- 



THE PANIC OF 1907 



cumstances justifying it, the rates of the railways gen- 
erally were increased. The continuance of the abuses 
of the railway management was made by the Rate Bill 
much more difficult, but the Rate Bill has not had the 
slightest effect upon the legitimate business earnings of 
the railways. The utter hollowness in the cry that the 
Rate Bill caused the panic, is seen in the fact that those 
who now venture to advance this proposition have been 
for more than a year contending that the Rate Bill was 
a humbug and a fraud because it had no effect what- 
ever — because it had given promise of a reduction of 
rates and no reduction of rates followed. 

Then State legislation against railroads is pointed 
to as a cause for shrinkage in the value of the stocks 
and for the panic. Mr. Roosevelt and the National 
Administration are not responsible for this. It was oc- 
casioned by the same revelations of lawlessness and dis- 
crimination in railway management that made the 
Federal Rate Bill a necessity. If the State measures 
have been too drastic, the cause of the injustice is not 
with the National Government. 

Instead of making a panic, the national policy, of 
ending the lawlessness of corporations in interstate com- 
merce, and of taking away their power of issuing, with- 
out supervision, stocks and bonds, will produce a change 
in their management and remove one fruitful cause for 
loss of public confidence. 

The business men in the past have sympathized with 
the effort to eradicate from the business system of this 
country the influence and control of those who have 
achieved success by illegal methods. Is all this to be 
changed by the panic? Is it proposed, because of it, 
to repeal the Rate Bill? Shall we dismiss the prosecu- 
tions for violations of the anti-trust law? Shall we 



218 



THE PANIC OF 1907 



permit and encourage rebates and discriminations by 
railways? Is this the condition of sanity to which we 
are invited to return ? Shall we j oin in the sneer at .the 
fight of the Administration for honesty and legality in 
business as a youthful attempt at an alleged moral re- 
generation of our business system? No panic, however 
severe, can make wrong right. No man who sincerely 
believed the Administration right in its measures to 
punish violations of law, can now turn from the earnest 
support of that policy to-day. 

I believe myself to be as conservative as anyone within 
this company. I believe that in connection with per- 
sonal liberty, the right of personal property is the basis 
of all our material progress in the development of man- 
kind, and that any change in our social and political 
system which impairs the right of private property 
and materially diminishes the motive for the accumula- 
tion of capital by the individual, is a blow at our whole 
civilization. But no one can have been an observer of 
the operation of the exercise of the right of property 
and the accumulation of capital and its use in business 
by the individual and the combination of capital by the 
combination of individuals, without seeing that there 
are certain limitations upon the methods in the use of 
capital and the exercise of the right of property, that 
are indispensable to prevent the absolute control of the 
whole financial system of the country passing to a 
small oligarchy of individuals. 

The combination of capital is just as essential to 
progress as the assembling of the parts of a machine; 
and hence, corporations, however large, are instruments 
of progress. But when they seek to use the mere size 
or amount of the capital which they control to monop- 
olize the business in which they are engaged, and to 



THE PANIC OF 1907 



219 



suppress competition by methods akin to duress, they 
should be restrained by law. 

'Again, I am earnestly opposed to the government 
ownership of the interstate railways, which are the 
arterial system of this country. Those railways should 
continue to be managed by private corporations. Gov- 
ernment ownership of railways means State socialism, 
an increase in the power of the central government that 
would be dangerous. It would be a long step away 
from the individualism which it is necessary to retain 
in order to make real progress. But no one could de- 
fend a railway system in which the unlawful discrimina- 
tions by secret rebates and otherwise were practically 
without limit in the interest of the trusts and against 
the ordinary shipper. These abuses can only be reached 
and ended by closely regulating the railways and 
putting them under the tribunal which can insist upon 
publicity of business and in cases of complaint can 
direct the exact remedy for the wrong. 

If the abuses of monopoly and discrimination can not 
be restrained ; if the concentration of power made pos- 
sible by such abuses continues and increases, and it is 
made manifest that under the system of individualism 
and private property the tyranny and oppression of an 
oligarchy of wealth can not be avoided, then socialism 
will triumph and the institution of private property will 
perish. 

The Administration has been thus far successful in 
showing that dangers from individualism can be effec- 
tively regulated, and that abuses in the exercise of 
private property can be restrained. Thus a great con- 
servative victory has been won and the coming of social- 
ism has been stayed. 

The question which you have ultimately to meet is not 



220 



THE PANIC OF 1907 



whether we shall return to a condition of unregulated 
railways and unregulated trusts ; but it is whether we 
shall maintain a strict system of regulation of railways 
and trusts or whether we shall turn the country over to 
the advocates of Government ownership and State so- 
cialism. Anyone who 'seeks a retrograde step from the 
policy of the Administration, on the theory that it would 
be a real step toward conservatism, is blind to every 
political sign of the times. 

If one attempts to fix the center of the conservatism 
of the country, he is likely to fix it in New England. 
If he is seeking a community where appeals to right- 
eousness and justice awaken a response, he will find it in 
New England. Hence it is that I have ventured at 
this time and under the circumstances I have described, 
to discuss the political aspects of this panic, and to 
appeal to you, whether Democrats or Republicans, not 
to allow an acute condition involving pecuniary loss and 
mental strain, serious as it is, to lead you from the 
broad, impartial, just and patriotic view of the situa- 
tion. In this widespread catastrophe, I have the deep- 
est sympathy with the great body of business men and 
wage-earners, who I know are honest, and who have to 
bear the brunt of it. And I feel the greatest solicitude 
and anxiety for their recovery; but I urge them not to 
allow their resentment at conditions to be made a weapon 
against the public weal. 



SOUTHERN DEMOCRACY AND REPUBLICAN 
PRINCIPLES 

LEXINGTON, KENTUCKY, AUGUST 22, 1907 

It is a great pleasure for me to be given the opportunity 
to address an audience like this of a state lying next 
to my own, and one with which I have been more or 
less familiar since boyhood. I can well remember how 
often, in early years, I looked over from the suburbs of 
Cincinnati, where I was born and brought up, to Ken- 
tucky, and I discovered the signs of coming summer in 
the apple, peach and cherry trees that flung out their 
beautiful banners of blossoms on the green hills imme- 
diately opposite. 

As one looks over this blue grass region far-famed as 
it is for its beautiful women, magnificent horses and 
other things, a country that God has blessed in so many 
different ways — and observes the wealth and prosperity 
of its inhabitants, and the comfort which they enjoy 
on every hand, he is moved to inquire why it is that 
in the governmental control of this great United States, 
so fair, so educated, so intelligent a community as that 
of Kentucky wields comparatively so small an influence 
on the general government. Why is it that Ken- 
tuckians are not in the councils of the Nation? It is 
true they have their Congressional and Senatorial rep- 
resentatives, but why is it that in framing the policies 
— foreign and domestic — with which we have to do as 
a nation, Kentuckians, like their brethren of all the 
Southern states, have so little to say? This patent fact 
in respect to the Government at Washington has not 
failed to escape the attention of the leading men who 

221 



%Z2 SOUTHERN DEMOCRACY AND 



represent the South in Congress, and it has called for 
regretful comment with explanations that, with defer- 
ence to those who make them, I submit are not the true 
ones. The reason why the South exerts so little politi- 
cal influence in the guidance of the nation is because one 
single issue has made it the perpetual tail of the Demo- 
cratic party, so that however small the Northern head, 
it wags that tail. The South has permitted the shadow 
of an issue that circumstances in this state ought long 
ago to have removed from political controversy to bind 
it solidly to the Democratic party, no matter what prin- 
ciples or candidates that party has adopted. 

The specter of so-called negro domination, the threat 
of a recurrence to the days of reconstruction, however 
weighty they might have been at one time in the history 
of the far Southern states, have never had any sub- 
stantial weight or reason for being in this great State 
of Kentucky, for the colored people of the state were 
never so numerous as the white voters. The force of 
inertia keeping voters in the Democratic party on the 
race issue was in this state always a mere sentiment 
without reason. Nevertheless, Kentucky has trailed 
along with her sisters further south. It has always 
been regarded as a solid Democratic state, no mat- 
ter what the Democratic party did in its conven- 
tion, no matter whom it nominated. Under those cir- 
cumstances, with human nature as it is, why should 
the Northern Democrats pay the slightest attention 
to what the Kentucky Democrats desired? Why should 
the Northern Republicans, who could not expect a 
majority in Kentucky, pay the slightest attention 
to what the people of Kentucky wished? Why should 
the President take into his Cabinet a representa- 
tive from Kentucky? Kentucky, while an agricultural 



REPUBLICAN PRINCIPLES 223 



state, is developing great manufactories. It is develop- 
ing great mining industries — and all of them are more 
or less dependent for their success upon the protective 
tariff. There are a number, I doubt not, of sincere pro- 
tective tariff men among the Democrats of Kentucky, 
and yet throughout these forty years since the war, they 
have come forward solidly and stolidly to vote the Demo- 
cratic ticket merely because of the feeling on the race 
issue which they derived from their far Southern 
brethren. Now is not it time for a manly and highly 
intelligent electorate to commune with itself and to say 
to itself at the polls, it shall establish its right to be 
considered by both parties as a factor in making up 
national policies and in selecting national candidates? 

We have arrived in the history of the politics of this 
country at what seems to be a repetition of that condi- 
tion which existed at the end of Monroe's second ad- 
ministration, called the era of good feeling. After vio- 
lent outbursts against President Roosevelt for his ex- 
pressed sympathy with the colored man, the men of the 
, South generally have come to recognize the sterling 
virtues and courage and independence of our President, 
and I venture to say that there is no section of the coun- 
try in which he is more popular than he is in the South 
to-day. It was not an exaggeration when a gentleman 
of Texas, who greeted the President on behalf of one 
of the cities of that state, said to him : " Mr. President, 
we welcome you to a state where you have more friends 
and fewer voters than any state in the Union." That 
was true. That was an anomaly, and what I ask you 
to-day is, is there any reason for the existence of such 
an anomaly — whether the time has not come, especially 
for men of Kentucky, in which there was never the 
slightest occasion for the race feeling, to support Presi- 



224 SOUTHERN DEMOCRACY AND 



dent Roosevelt, not only in expressions of good will, not 
only in praise and approval, but also in that which 
counts, in casting their ballots in behalf of the party 
and its candidates, of which he is the head. 

I propose with your permission for a little while to 
take up the race question. It is a question that it is 
difficult to deal with impartially and in a spirit of 
friendliness and charity toward all sides, so as to avoid 
irritating phrases and bitter responses. And yet when 
one comes into a Southern community, with that re- 
garded as perhaps the chief question of the day, one 
can not be frank and courageous, and avoid it. I know 
that the discussion by a Northern man of the question 
is apt to rouse on the part of the Southern Democrat 
the objection that he does not understand the question, 
that he does not know the difficulties of it, and that if he 
can't take it up with sympathy with the attitude of 
the white man in the South, he had better not take it up 
at all. On the other hand, he is liable to encounter the 
criticism of the colored men, who, with a natural sensi- 
tiveness and interest in their race, and remembering 
the wrongs and oppression to which their race has been 
subjected in times past, resent on the part of the 
Northern man any attitude which does not involve con- 
demnation of the attitude of the Southern white man, 
or which manifests the slightest consideration for his 
view. I am not a pessimist with respect to the race 
question. I am convinced that it is working itself out, 
and I am convinced that nothing has so much con- 
tributed to its gradual solution as the 13th, 14th and 
15th amendments. 

The 13th amendment abolished slavery. There have 
been some intermittent attempts on the part of extreme 
men in the South at times to revive a system of involun- 



REPUBLICAN PRINCIPLES 



225 



tary servitude, called peonage, which, however, is sub- 
ject to prosecution under the Federal law, and which 
we may expect to be eliminated in due course. The 
13th amendment on the whole has been entirely effec- 
tive to release the slaves. 

In the 14th amendment the colored man has been 
guaranteed against state or other action or any effort 
to deprive him of life, liberty or property without due 
process of law. Under this amendment and in con- 
formity to it, those who were slaves, and the colored 
people who have been born since, have been able through- 
out the Southern states to earn and save their money 
and to make themselves useful members of the com- 
munity. By the 13th amendment four millions of them 
were taken from their masters and turned out upon the 
world to enjoy freedom. In the outset this certainly 
seemed to be a heavy burden — that they who had been 
wont to depend on others not only for their food and 
clothing but for the guidance of their lives, should 
now be made to depend upon themselves to find the work 
and earn the wages with which they might stand up and 
support themselves as free citizens of this country. It 
was a long, hard, severe lesson through which these four 
millions, now increased to eight, had to go. There were 
but five per cent, of them who were literate ; ninety-five 
per cent, were in the darkness of utter ignorance. For 
a time general education was thought to be the best 
means of uplifting the race, and undoubtedly the re- 
moval of illiteracy was a great boon to it ; but in the 
past two decades under the influence of General Arm- 
strong, Dr. Frisell and Booker Washington, the wisdom 
of making the education manual and industrial for the 
benefit of the great bulk of the race has been made mani- 
fest. The colored people have been taught by their 



226 SOUTHERN DEMOCRACY AND 



greatest leader, Mr. Washington, that the way for the 
negro to build himself up is to make himself useful as a 
laborer — unskilled and skilled — as a farmer and as a 
business man in the community of which he forms part. 
As he lives in an agricultural country he should learn 
that the best home for the negroes is the farm and that 
the best property which he can accumulate is farm land 
and farm equipment. I shall not stop to give you the 
statistics showing the great progress that has been 
made by the negro race in the South in literacy, in the 
enormous increase in the farm holdings by colored men 
and the great proportion of the agriculture of the South 
that they carry on. We are apt to forget this real 
improvement in the diatribes that we occasionally hear 
from men who seem to have a lack of sympathy with the 
progress of the colored race and who lose themselves in 
denunciation of the entire race on account of a com- 
paratively small criminal class that formed the dregs 
of the Southern population. 

I shall not rehearse the history of reconstruction or of 
the bloody days of the South that followed it, or of the 
fraud and oppression and violence with which the 15th 
amendment was nullified in the far Southern states. 
Suffice it to say that the negro vote in those days was 
made to count for nothing. But, as always happens 
where law is flouted and fraud and violence are allowed 
to have full sway, the good people in the community 
found that the triumph of such methods had a tendency 
to create a demoralization in all walks of life. There- 
fore, we find in every Southern state a movement on the 
part of the good element in the Democratic party to 
introduce new laws and new constitutions, which shall 
make the exclusion of the negro from the ballot square 
with the law. So we have these constitutional amend- 



REPUBLICAN PRINCIPLES 227 



merits which introduce educational and property quali- 
fications for electors, with clauses called " grandfather 
clauses," which permit voting on a basis of ancestry. 
The grandfather clauses are supposed to permit the 
poor ignorant white to vote and to exclude the colored 
man. I do not hesitate to say that if that is the result, 
it is a violation of the 15th amendment. But these 
grandfather clauses have generally expired by limita- 
tion according to their terms, and now the method of 
excluding the negro from the ballot is to have a law of 
ineligibility apply in its terms equally to black and 
white, and to secure a discrimination in favor of the 
white by executing the law rigidly against the black 
and allowing the white to vote. I deplore such methods. 
An exclusion of both black and white on the ground of 
ignorance and irresponsibility, measured by proper 
standards, is not subject to criticism if impartially en- 
forced. But an unlawful discrimination in the execu- 
tion of the law is different perhaps in method, but still 
is fraud, like the original violence and ballot-stuffing of 
previous years. Nevertheless the fact of the step is a 
good sign. It is an indication that the conscience of 
those who have violated the law is in some measure being 
stirred, and with the law on the statute book we may 
reasonably hope that ultimately the law will come to be 
fairly enforced, for we may reasonably hope that the 
colored men of the South, under the influence of Booker 
Washington and his supporters, will continue to go into 
business, to go on farms, to possess themselves of prop- 
erty and to become respected members of the communi- 
ties in which they live, and when they exercise independ- 
ence of judgment in respect to political issues, we may 
be sure that gradually the right to vote will be accorded 
them and they will exercise a far more useful influence 



228 SOUTHERN DEMOCRACY AND 



as intelligent and solid members of the community for 
the benefit of their race than the ignorant members of 
their race would have exercised, had they been allowed 
to vote. In this way through devious ways, which can 
not be justified or approved, we may still reach a result 
that will square with the requirements of the Federal 
constitution and will give to the negro every political 
and economic right, and will confer great benefit upon 
the colored race. 

The negro is necessary to the South as a laborer — 
skilled and unskilled. The South could not get along 
without him. The world over to-day there is a demand 
for labor, and were the negro to be withdrawn from the 
South the difficulties agriculture would labor under can 
hardly be overstated. The negro is an American. He 
has no other country than this, and can have no other 
country than this, and called upon to defend it he 
lays down his life as freely as the white man sacrifices 
his. Ours is the flag he loves — the only one he knows. 
It is our duty to see to it that his path is made as easy 
as we can, that his progress is as incessant as proper 
encouragement can make it. His best friend, the one 
that can do most for him and the one in many respects 
who sympathizes with him most, is the Southern white 
man. He understands his defects. He knows his vir- 
tues. And if the negro responds to the opportunities 
for improvement as Booker Washington points them 
out, we can be sure that he will grow in the estimation 
of his white fellow-citizens of the South, and that the 
great problem which has burdened the South, with its 
race issues, will be largely solved. It is plain that the 
party of intelligent Southerners who are sympathetic 
with Booker Washington and the evangel he is preach- 
ing to his people is growing in force and influence. 



REPUBLICAN PRINCIPLES 229 



Propositions are made to repeal the 15th amendment. 
Such propositions are foolish. The people of this coun- 
try would never consent to such a retrograde step. It 
may be that the 15th amendment is to-day nullified in 
many states. Nevertheless it stands there as a monu- 
ment and a mandatory restriction upon state laws and 
as an ideal toward which politically the South must 
work. The 15th amendment does not require that every 
negro shall vote. All that is required is that he 
should not be excluded from voting because he is a 
negro. If he lacks educational qualification, property 
qualification, or any other qualification that the state 
may lawfully impose as a rule of eligibility for its 
voters, then he may be excluded provided that everyone 
else who lacks similar qualifications is equally excluded. 
The lt5h amendment is merely intended to secure him in 
his political rights from race discrimination by the 
states. It is not intended to give him affirmative privi- 
leges as a member of his race. Its strict enforcement 
does not involve the amalgamation of the races — does 
not involve social association or equality. It does not 
involve negro domination, and to permit the question now 
at this late day — forty years after the war — to control 
the votes of intelligent men in respect of issues that are 
living and that affect their welfare, is to indicate on 
their part a lack of sense of proportion which I can 
not think will continue to manifest itself among the 
voters of the South. If only under the influence of 
President Roosevelt's administration some of the South- 
ern states, including Kentucky, could be led into the 
Republican column in accordance with the real sym- 
pathies of the voters of those states, it would be a crown- 
ing glory of his administration. It will not necessarily 
work for the benefit of the Republican party in the end, 



230 SOUTHERN DEMOCRACY AND 



because the closeness with which the Southern states 
have united in support of Democratic candidates and 
the Democratic party has introduced a similar cohesion 
among the Northern states and we might expect much 
more independence of voting at the North if the voters 
there were not confronted with the solidarity of the 
South. As an American citizen and lover of my coun- 
try, however, I long for the time when the South shall 
be received again into the councils of the nation, and 
when the people of that section shall resume the influ- 
ence to which they are entitled and which they them- 
selves deny themselves by being frightened at a mere 
ghost of the past. 

It ma}' be said that when I say the South denies it- 
self the opportunity to take part to influence the course 
of the Government and to determine its policies, I ignore 
the fact that by the oppression of the negro vote, the 
white Democrats of the South in point of representa- 
tion in the Senate, and in the House per capita, wield 
a far greater influence on the legislation of the country 
than do the Northern voters per capita, because in the 
representation they get the benefit in the proportion 
of all their colored adults over twenty-one, while they 
exclude them from exercising the ballot. This is true 
and it is an injustice ; but the very injustice leads many 
a Northern voter to support the Republican party and 
to keep it in control, and thus prevent the Southern 
states, following as they do the Democratic party, from 
taking any part in the executive control of the Govern- 
ment or to exercise any substantial influence. 

Why should not the Democratic voters of Kentucky 
who really sympathize with Theodore Roosevelt and his 
policies, come into the Republican party and uphold the 
standard which he carries? What is there about his 



REPUBLICAN PRINCIPLES 281 



policies that they do not approve? Let us examine as 
between him and Mr. Bryan, who represents the Democ- 
racy to-day. First, do they believe that the tariff is 
a robbery of the many for the enrichment of the few? 
Do they think it is wiser to destroy our present business 
prosperity, which has as its basis the protective tariff 
system? If so, then they are right to continue to vote 
with Mr. Bryan; although it will probably be found, 
should Mr. Bryan come into office with a Democratic 
House and Senate behind him, that a tariff bill pro- 
duced by a Democratic House and Democratic Senate, 
to be signed by a Democratic President, would be just 
such another botch as was the Gorman- Wilson tariff bill, 
a hybrid which was neither real protection nor real free 
trade, and was only productive of disaster to the busi- 
ness interests of the country. 

Then let us take the question of our policy with our 
dependent possessions, including Porto Rico, Cuba and 
the Philippines. As to Porto Rico there is not much 
question except as to whether we shall bring a million 
people of that island into our political system so as to 
make them citizens and ultimately make them a state 
and give them two senators and an appropriate number 
of representatives. Upon that question neither party 
has spoken and I do not know that any issue is raised. 
With respect to Cuba there seems to be no dispute, and 
that it is our duty to go ahead and prepare the island 
for peaceful government and turn it back to the repub- 
lic, the functions of which are temporarily suspended. 

Coming then to the Philippines, there we do have a 
sharply drawn issue between Mr. Bryan and Mr. Roose- 
velt, and upon that issue I venture to say that men of 
the South are largely with Mr. Roosevelt. In the 
Spanish- American War, which was brought about quite 



282 SOUTHERN DEMOCRACY AND 



as much by the earnest sympathy of the South as by the 
feelings of the Republicans of the North, we were car- 
ried by the exigencies of battle to the Philippine Islands 
and almost before we knew it. By Dewey's victory and 
what followed we were put in a position that required 
us to decide, whether having fought with the Filipinos as 
allies against Spain in a war to free them from what 
they regarded as oppression by Spain, we should 
thereafter agree with Spain to turn them back to that 
same sovereignty. That seemed treachery to an ally. 
Consequently could we turn the islands over to the in- 
surgents with whom we had been fighting as allies? 
They had nothing but a military government, and that 
in the four or five months when they exercised any power 
had proven to be a colossal failure, in which the tyrannies 
were quite as great as they were in the Spanish times. 
Aguinaldo and his government were utterly unable to 
give security of peace, law and order to the three hun- 
dred islands with their population of 8,000,000. In 
the interests of the people themselves it was absolutely 
necessary that we should take the other alternative, 
establish a government in the Islands ourselves and at- 
tempt to teach the people something of the principles of 
self-government in order that ultimately we may be able, 
if they desire, to turn over the government to them. Mr. 
Bryan asserts that the Filipinos are entirely capable 
of self-government and ought to be permitted to con- 
trol the Islands, however ignorant, however lacking in 
political experience they may seem to be. Now I submit 
to you, and I submit to the whole Southern people, 
whether we can safely trust a people, the great majority 
of whom are without political experience, to govern 
themselves and produce a modern civilization. Can we 
avoid the trust which has been thrust upon us? Can 



REPUBLICAN PRINCIPLES 233 



we avoid the responsibility which is ours by reason of 
fate and say to these people, " Take over your govern- 
ment ; you have had no experience ; you can begin your 
factional guerrilla warfares and we will move out of the 
Islands." Is there not an obligation on the part of 
a great, rich, intelligent and capable nation like ours, 
when fortune has thrust us into control of 8,000,000 
of people like these, to establish a government in which 
law and order shall be preserved and in which the rights 
of the humblest may be maintained and to remain there 
until we can be certain of its continuance? Were we to 
leave, there is every prospect that tyranny would be re- 
introduced and there would only be class government, 
and that the uplifting of the people would cease. The 
principles of the Declaration of Independence do not 
require the immediate surrender of a country to a people 
like this. If they did, then it would be utterly impos- 
sible to defend rules which exclude women from the bal- 
lot, rules which exclude minors from the ballot, rules 
which exclude ignorant and irresponsible male adults 
from the ballot. Do the people of the South contend 
that the difficult science of self-government is so im- 
planted in the breast of every human being, be he 
Hottentot, Esquimaux or any of the uncivilized races, 
or even one of those partly civilized or those having no 
experience in government, that he ought not to be as- 
sisted in the maintenance of a government which shall 
secure law and right? We are engaged in a great al- 
truistic work in the Philippines. We promised that 
we would gradually increase their measure of self-gov- 
ernment as they might show themselves fit, that we would 
lead them on and on in this direction, and the necessary 
inference is that ultimately when they became fit for 
self-government, if they desire, then they shall have it. 



234 SOUTHERN DEMOCRACY AND 



But to throw them out now upon the world entirely in- 
capable of maintaining permanently a government in 
which law and order shall be supported, would be to run 
away from the plain duty of a nation conducted on the 
principles of Christian civilization. 

We have been in the Philippines now nearly ten years. 
For four years we were engaged in suppressing the 
disorder due to two insurrections and the Spanish- 
American War. Since that time we have been slowly 
laboring against the burdens which have come upon the 
people both from war and also from famine and pesti- 
lence and the destruction of their one instrument of agri- 
culture^ — the water buffalo. Gradually we can see im- 
provement in the business of the islands. Gradually we 
can see the restoration of all the conditions favorable to 
a prosperous future. If we can only open to the mar- 
kets of the United States the products of those Islands, 
it will greatly aid them without in the slightest degree 
injuring the similar agricultural interests of the United 
States, and ultimately doubtless we shall come to this. 
The more generously we treat the Islands, the more 
carefully we look after their interests, the more will be 
our reward in the matter of growth of commerce be- 
tween the two countries, and the more satisfactory will 
be our contemplation of the policy of altruism which we 
shall have pursued in reference to a generous, graceful, 
light-hearted Oriental Christian people. 

Thirdly, how with reference to railway regulations? 
Do you favor Mr. Bryan's policy or do you favor Mr. 
Roosevelt's? Mr. Bryan wishes to purchase all the in- 
terstate railways of the nation, some 280,000 miles in 
extent, costing upward to the nation of $14,000,000,- 
000, and to operate them as a government institution. 
Shades of Thomas Jefferson ! Think of what he would 



REPUBLICAN PRINCIPLES 235 



have said of such an accumulation of power in the 
executive of his republic. Even a man of the dullest 
imagination trembles at the thought of the power which 
the executive might exercise with that instrument under 
his control. And why does Mr. Bryan favor Govern- 
ment ownership? It is because he thinks that the 
tribunal appointed to regulate the railroads — the 
interstate commerce commission — must necessarily come 
under the influence and domination of the railways of 
the country. In other words, he does not believe in the 
possibility of securing individuals who are able, cour- 
ageously, and with an eye single to the interests of the 
republic, to administer and enforce the laws and regula- 
tions with reference to the wholesome, just and efficient 
conduct of the railways of this country. It is a great 
arterial system. When it is poisoned, when it is con- 
ducted dishonestly, when there is discrimination against 
it, then the person or the locality against whom that 
discrimination is exercised, is palsied and withered. It 
is a great trust that railways by the enjoyment of the 
franchise of public transportation take over and exer- 
cise, and it is essential that they should discharge that 
trust honestly and impartially to all individuals and 
localities. Mr. Roosevelt believes in the individual. He 
believes that it is possible under our system to select 
men who, courageous, brave, free from the influence of 
the power of money, will discharge the functions placed 
upon them and see to it that the public interests are 
conserved. Now are you with Mr. Bryan or against 
him, or are you with Mr. Roosevelt or against him? I 
need not ask the question, for I know that in this State 
of Kentucky a majority of the Democrats on this point 
are with Mr. Roosevelt. Why then should not they 
vote their sentiments? 



236 SOUTHERN DEMOCRACY AND 



Upon the question of trusts how is it? Mr. Bryan 
uses a great deal of rhetoric in connection with the 
trusts. He would extirpate and root them out. Now 
what is a trust? A trust is a great combination of 
capital in manufacturing plants which produce a large 
part of the product of any particular line of mer- 
chandise. If by trusts you mean an illegal trust or if 
the term is to be taken as an illegal combination, then 
the definition should be extended. It means a large 
combination of capital for the production of any com- 
modity in which the combiner aims by reason of the ex- 
tent of the plant and by methods of duress to drive out 
competition and to monopolize the trade. Now com- 
bination is the law of being of our present business 
community. A machine for manufacturing that which 
was made by hand before is formed by the assembling 
of many parts, and by the joint action of all of them 
the more rapid, and generally the more efficient, manu- 
facture of the article in question is secured. Always it 
is more economical than hand production. So the com- 
bination of capital is a means of reducing the cost of 
production, so that the lowered expense results in much 
of the enormous strides that we have made in our com- 
mercial and manufacturing life. The public can no 
more dispense with it, and the government has no more 
right to suppress it, than any other good movement in 
other useful means of profit. Combination is what en- 
ables the laborer to-day to secure the proper measure 
of the joint profit between him and the capitalist. He 
unites with his fellows in the trades unions, lays up 
money to be used in times of stress when in the constant 
and necessary recurring strife between labor and capi- 
tal for a division of the joint profit, he may support 
himself or his fellows in temporary idleness. The spirit 



REPUBLICAN PRINCIPLES 237 



of combination has created these enormous trades 
unions, which wield a power for good that can hardly 
be over-estimated. And yet the Government has no 
more business to suppress combination of capital than 
it has combination of labor, and the Government will 
never suppress either as long as the enormous power 
which each uses is confined within the limits of lawful- 
ness and is not perverted to deprive men, communities, 
or the public, of that which should be theirs. But 
when combinations of capital are used not alone to pro- 
duce economy in production but methods are adopted 
and devised by which the combination drives out of 
business smaller concerns engaged in competition, or 
uses devices by which customers are compelled to deal 
with the combination and abandon their smaller com- 
petitors — that is, when they introduce an element of 
coercion into the business, it becomes a trust, and an 
unlawful trust. Now, the question is whether that 
trust shall be destroyed, whether the parts of it shall be 
disassembled and we shall go back to the single fac- 
tories, or whether the leaders of that trust shall be 
punished for violating the law and required by such 
punishment and by injunction to return to the lawful 
administration of their business and to confine them- 
selves to a legitimate form of competition and to 
the maintenance of their prestige in business by 
reducing the cost of production and sharing that 
cost with the public in reduced prices. If Mr. Bryan 
can be believed, he is in favor of driving them all 
out of business. Mr. Roosevelt is in favor of punish- 
ing them, of eliminating lawlessness and maintaining 
the useful combination. On which side of that ques- 
tion are the Democrats of the South going to range 
themselves ? 



238 



SOUTHERN DEMOCRACY AND 



Mr. Roosevelt is in favor of a large navy. He is in 
favor of a navy commensurate to the size of the coun- 
try, so that no country may insult us or offend our 
dignity or subject us with impunity to a course which 
we otherwise would not take. In other words, he is in 
favor of a navy to keep the peace. He would be mild 
in manner and sweet in disposition, but he would have 
it understood that his anger could be aroused, and when 
aroused that he knew how to strike and had the means 
withal to strike effectively. Mr. Bryan, if I under- 
stand him, would have no navy, but he would have a 
navy that was prepared over night. We should be in 
a pusillanimous position — one in which we could effect 
no good. 

We have not yet reached the millennium when every- 
thing is to be settled by arbitration and by peaceful 
influence. We are not looking out into the world for 
conquests or exploitations. We are not seeking to take 
anything which is not ours. We are not seeking to de- 
prive any nation of what is its own ; but in international 
life there is a great opportunity for the exerting of a 
peaceful, moral influence among nations. A nation of 
80,000,000 people should not hesitate to prepare itself, 
to make its healthful influence as effective as possible. 
And I don't care whether you are a member of the 
strictest peace society, or whatever your principles, if 
you answer yourself, deep down in your heart truth- 
fully, you know that a nation that is able to defend it- 
self, a nation whose coast is properly protected for the 
resistance of modern war attacks, and whose navy is a 
formidable fleet of modern ironclads, exerts much more 
influence to secure justice than the nation whose defenses 
are to be improvised in a week, whose navy is to be con- 
structed of shallops and swivel guns or converted mer- 



REPUBLICAN PRINCIPLES 239 



chantmen. Are you with Mr. Bryan or are you with 
Mr. Roosevelt on that issue? 

Finally, Mr. Bryan wishes to have the judges of all 
the Federal Courts elected. He wishes to take away the 
power to issue injunctions, conferred upon the courts as 
perhaps their most effective arm to bring about justice, 
and all because he does not think men can be found 
capable of wielding the power necessary to make an effi- 
cient government and necessary to make an efficient 
court, without running the risk of having them cor- 
rupted by the influence of wealth and the influence of 
corporations. Mr. Roosevelt believes that it is possible 
and necessary if we have government at all to have a 
government strong enough, efficient enough, and with 
power enough, to make both wealthy and poor obey the 
law. And under the combinations that we have to-day 
of labor unions on the one hand, and wealth and capital 
on the other, if we would keep them both within the law, 
in exercising their enormous power, we must have courts 
that are to be strengthened and not weakened. And if 
we can not find the public agents in our individuals who 
can exercise that government power without danger, 
then we might as well go out of the governing busi- 
ness. Mr. Bryan would create a favorite class of law- 
less workingmen. Mr. Roosevelt would have no fa- 
vorites, but would treat the wealthy and the poor alike, 
and would bring them within the control of the law. 
Are you with Mr. Roosevelt or are you with Mr. Bryan 
on that issue? 

Now I am aware that it is said that Mr. Bryan is not 
the Democratic party, and that the Democratic party 
is not Mr. Bryan. Your own distinguished fellow- 
citizen, Mr. Henry Watterson, is engaged in giving out 
at various times most interesting views on public ques- 



240 SOUTHERN DEMOCRACY 



tions which assume that there is a difference between 
what Mr. Bryan thinks and what the Democratic party 
thinks. But everybody knows that Mr. Bryan is to be 
the next candidate for the Presidency, and that Mr. 
Bryan's influence is controlling in the Democratic party, 
and that what he thinks makes up the real platform of 
the party. Now I know the Democrats of the South 
many of them have no sympathy whatever with the 
principles that actuate Mr. Bryan. And I say to them 
as courageous men who can look situations square in the 
face, are they longer to permit themselves to be led at 
the tail of the wagon, pursuing a course with which 
they have no sympathy merely because of the traditions 
of the past and a ghost of a former issue? 

They have an opportunity in the present election to 
make an effective Declaration of Independence. The 
Democratic party is hopelessly divided by the ar- 
bitrary conduct of an iron machine and the time is ripe 
for a change. The Republican party has nominated a 
strong ticket. Mr. Willson, the candidate for Gov- 
ernor, a member of the Bar of high standing, of great 
ability and representing the best elements of Republi- 
canism in the state, may well command your suffrages 
because you may be confident that he will make a digni- 
fied, honest, courageous and efficient governor of the 
commonwealth. His colleagues on the ticket should 
appeal to you in the same way. Now is the accepted 
hour to break away from the dead bonds of the past 
and range yourself under the banner of the party of 
progress, efficiency and reform under the leadership of 
Theodore Roosevelt. 



LABOR AND CAPITAL 



DELIVERED BEFORE THE COOPER INSTITUTE, NEW YORK 
CITY, FRIDAY, JANUARY 10, 1908 

Ladies and Gentlemen : I am going to ask your atten- 
tion to-night to the subject of labor and capital, their 
common interest, their necessary controversies, their 
lawful acts and the legal remedies for their abuses. 

origin of institution of property 

Looking back to a time when society was much ruder 
and simpler, we can trace the development of certain 
institutions that have come to be the basis of modern 
civilization. We can hardly conceive the right of per- 
sonal liberty without private property, because involved 
in personal liberty is the principle that one shall enjoy 
what his labor produces. Property and capital were 
first accumulated in implements, in arms and personal 
belongings, the value of which depended almost wholly 
on the labor in their making. As man's industry and 
self-restraint grew, he produced by his labor not only 
enough for his immediate necessities, but also a surplus, 
which he saved to be used in aid of future labor. By 
this means the amount which each man's labor would 
produce was thereafter increased. There followed at 
length the corollary that he whose savings from his own 
labor had increased the product of another's labor was 
entitled to enjoy a share in the joint result, and in the 
fixing of these shares was the first agreement between 
labor and capital. The certainty that a man could 
enjoy as his own that which he produced or that which 
he saved, and so could dispose of it to another, was the 

241 



242 



LABOR AND CAPITAL 



institution of private property and the strongest motive 
for industry beyond that needed merely to live. 

This is what has led to the accumulation of capital in 
the world. It is the mainspring of human action which 
has raised man from the barbarism of the early ages to 
modern civilization. Without it he would still be in the 
alternating periods of starvation and plenty, and no 
happiness but that of gorging unrestrained appetite. 
Capital increased the amount of labor's production and 
reduced the cost in labor units of each unit produced. 
The cheaper the cost of production, the less each one 
had to work to earn the absolute necessities of life, and 
the more time he had to earn its comforts. And as the 
material comforts increased, the more possible became 
happiness and the greater the opportunity for the culti- 
vation of the higher instincts of the human mind and 
soul. 

ALL BENEFITED BY INCREASE OF CAPITAL 

It would seem, therefore, to be plainly for the benefit 
of everyone to increase the amount of capital in use in 
the world, and this can only be done by maintaining 
the motive for its increase. 

SECURITY OF CAPITAL GREAT BENEFIT TO LABOR 

Labor needs capital to secure the best production, 
while capital needs labor in producing anything. The 
share of each laborer in the joint product is affected not 
exactly, but in a general way, by the amount of capital 
in use as compared with the number of those who labor. 
The more capital in use the more work there is to do, and 
the more work there is to do the more laborers are 
needed. The greater the need for laborers the better 
their pay per man. Manifestly, it is in the direct in- 



LABOR AND CAPITAL 



terest of the laborer that capital shall increase faster 
than the number of those who work. Everything, there- 
fore, which legitimately tends to increase the accumula- 
tion of wealth and its use for production will give each 
laborer a larger share of the joint result of capital and 
labor. It will be observed that the laborer derives little 
or no benefit at all from wealth which is not used for 
production. Nothing is so likely to make wealth idle as 
insecurity of invested capital and property. It follows, 
as a necessary conclusion, that to destroy the guaran- 
ties of property is a direct blow at the interest of the 
workingman. 

The last two generations have witnessed a marvelous 
material development. It has been effected by the as- 
sembling and enforced cooperation of simple elements 
that previously had been separately used. The organ- 
ization of powerful machines or of delicate devices by 
which the producing power of one man was increased 
fifty or one hundred fold was, however, not the only step 
in this great progress. Within the limits of efficient 
administration, the larger the amount to be produced 
at one time and under one management the less the ex- 
pense per unit. Therefore the aggregation of capital, 
the other essential element with labor in producing any- 
thing, became an obvious means of securing economy 
in the manufacture of everything. Corporations had 
long been known as convenient commercial instruments 
for wielding combinations of capital. Charters were at 
first conferred by special act upon particular indi- 
viduals and with varying powers, but so great became 
the advantage of incorporation, with the facility af- 
forded for managing great corporations, and the limita- 
tion of the liability of investors, that it was deemed 
wise in this country, in order to prevent favoritism, to 



244 



LABOR AND CAPITAL 



create corporations by general laws, and thus to afford 
to all who wished it the opportunity of assuming a 
corporate character in accordance therewith. 

The result was a great increase in the number of the 
corporations and the assumption of the corporate form 
by seven-eighths of the active capital of the country. 
For a long time it was contended that the introduction 
of machines to save labor would work an injury to those 
who made things by hand, because it enabled the capi- 
talist to reduce the number of hands that he employed. 
The argument was a strong one, but the result has 
shown that it was erroneous in that it did not take into 
account two things — first, that the saving made by 
machinery so increased the profit on the capital and 
thus made so much new capital that while the demand 
for labor in one factory or business was reduced, the 
number of businesses and factories grew so that on the 
whole the demand for labor increased greatly; and, sec- 
ond, the use of machinery so reduced the cost of produc- 
tion and price of both the necessities and comforts of 
life that the laborer's wages in money were given a sub- 
stantial increase in purchasing power. 

PANIC SHOWS LABOR'S INTEREST IN WELFARE OF CAPITAL 

What has been said, it seems to me, shows clearly 
enough that the laborer is almost as keenly interested in 
having capital increase as the capitalist himself. As 
already said, anything that makes capital idle, or which 
reduces or destroys it, must reduce both wages and the 
opportunity to earn wages. It only requires the effects 
of a panic through which we are passing, or through 
which we passed in 1893 or 1873, to show how closely 
united in a common interest we all are in modern so- 
ciety. We are in the same boat, and financial and 



LABOR AND CAPITAL 



business storms which affect one are certain to affect all 
others. It was not so much so in olden times, when the 
population was scattered, and when each family sup- 
plied almost all of its own wants, when it raised its food 
on the farm and made its clothes in the winter, and de- 
pended but little on what it sold, and bought practically 
nothing. Now we live in a society that is strictly co- 
operative. Destroy the buildings of a city like San 
Francisco by an earthquake, and then learn the com- 
plete dependence that all the urban population has upon 
the rest of the country for more than a week's life. As 
the population increases, as the cost of production for 
our necessities and comforts is reduced by having them 
made in great quantities, and at a low price, we be- 
come dependent on the working of this cooperative mech- 
anism to such a point that a clog in any of the wheels 
which stops them causes stagnation and disaster. 

Therefore, to come back to my original proposition, 
the laboring man should be the last to object to the 
rapid accumulation of capital in the hands of those who 
use it for the reproduction of capital. The thoughtful 
and intelligent laborer has therefore no feeling of hos- 
tility toward combinations of capital engaged in lawful 
business methods. 

The capitalist, however wealthy, who is willing to de- 
vote his nights and days to the investment of his capital 
in profitable lawful business or manufacture, and who 
studies methods of reducing the cost of production and 
economizing expenses therein, should be regarded with 
favor by the workingman, because, while his motive 
is merely one of accumulation, he is working not only 
for himself but for labor and for society at large. The 
inventors on the one hand, and the men of judgment, 
courage and executive ability, who have conceived and 



246 



LABOR AND CAPITAL 



executed the great lawful enterprises, on the other, have 
reaped princely profits, which the world may well ac- 
cord them for the general good they have done. The 
wealth they accumulated is not wrested from labor, but 
it is only a part of that which has been added to the 
general stock by the ingenuity, industry, judgment and 
ability of those who enjoy it. If, with the growth in 
the population, the condition of man is to improve, new 
plans for the use of capital to better advantage must be 
devised, which shall, at the same time, increase capital 
more rapidly than the population and reduce the cost 
of living. 

What has been said should not be misunderstood. 
The men who have by economic organization of capital 
at the same time increased the amount of the country's 
capital, increased the demand and price for labor and 
reduced the cost of necessities, are not philanthropists. 
Their sole motive has been one of gain, and with the 
destruction of private property that motive would dis- 
appear, and so would the progress of society. The very 
advantage to be derived from the security of private 
property in our civilization is that it turns the natural 
selfishness and desire for gain into the strongest motive 
for doing that without which the upward development 
of mankind would cease and retrogression would begin. 

FAIR. LAWS FOR CAPITAL SHOULD BE FAVORED BY LABOR 

It is greatly in the interest of the workingman, there- 
fore, that corporate capital should be fairly treated. 
Any injustice done to it acts directly upon the wage- 
earners who must look to corporate wealth for their 
employment. Take the large body of railroad em- 
ployees. Any drastic legislation which tends unjustly 
to reduce the legitimate earnings of the railroad must 



LABOR AND CAPITAL 



247 



in the end fall with heavy weight upon the employees 
of that railroad, because the manager will ultimately 
turn toward wages as the place where economy can be 
effected. So in respect to taxation, if the corporation 
is made to bear more than its share of the public bur- 
dens, it reacts directly, first, upon its stockholders, and 
then upon its employees. In the election of 1896, when 
the cry was for free silver, a great many wage-earners 
in that campaign of education were enabled to see that 
while the serious impairment of the standard value by 
going on to a free-silver basis might work advantage- 
ously for the debtor class, the laboring man belonged to 
the creditor class. The wage-earners had no debts of 
any amount to pay ; they were benefited by having their 
wages paid in the best currency possible ; and they were 
directly interested that their employers with capital 
should collect the debts due them in the same medium in 
which those debts had been contracted. The truth was 
that the wage-earners were in effect part of the moneyed 
classes of this country in the sense that their interest 
and that of the capitalist were identically the same in 
requiring the honest payment of debts. 

We are suffering now from a panic. It was brought 
on, in my judgment, by the exhaustion of free capital 
the world over, by the lack of an elastic system of cur- 
rency and also by a lack of confidence in our business 
fabric produced in Europe through the revelations in 
certain great corporations of business dishonesty, cor- 
ruption and unlawfulness. It had been necessary for 
us to purify some of our business methods; but the 
purification can not stop the panic. It will doubtless 
make another in the far future less likely. Meantime 
all must suffer, both the innocent and guilty, and the 
innocent more than the guilty. Certainly the laborer 



248 



LABOR AND CAPITAL 



who is thrown out of his employment by the hard times 
is innocent and suffers more than the capitalist, whether 
innocent or guilty, who has money to live on meantime 
until prosperity shall be restored. 

The conclusion I seek to reach is that the working- 
man who entertains a prejudice against the lawful cap- 
italist because he is wealthy, who votes with unction for 
the men who are urging unjust and unfair legislation 
against him, and who make demagogic appeals to ac- 
quire popular support in what they are doing, is stand- 
ing in his own light, is blind to his own interests and is 
cutting off the limb on which he sits. It is to the direct 
interest of the workingman to use careful discrimination 
in approving or disapproving proposed legislation of 
this kind and to base his conclusion and vote on the 
issue whether the provision is fair or just, and not on 
the assumption that any legislation that subjects a 
corporation to a burden must necessarily be in the in- 
terest of the workingman. What I am anxious to 
emphasize is that there is a wide economic and business 
field in which the interests of the wealthiest capitalist 
and of the humblest laborer are exactly the same. 

WHERE LABOR AND CAPITAL ARE NECESSARILY OPPOSED 
LABOR UNIONS NECESSARY 

But while it is in the common interest of labor and 
capital to increase the fruits of production, yet in de- 
termining the share of each in the product, their inter- 
ests are plainly opposed. Though the law of supply 
and demand will doubtless in the end be the most potent 
influence in fixing this division, yet during the gradual 
adjustment to the changing markets and the varying 
financial conditions, capital will surely have the advan- 
tage unless labor takes united action. During the bet- 



LABOR AND CAPITAL 



terment of business conditions, organized labor, if acting 
with reasonable discretion, can secure much greater 
promptness in the advance of wages than if it were left 
to the slower operation of natural laws, and in the same 
way, as hard times come on, the too eager employer may 
be restrained from undue haste in reducing wages. The 
organization of capital into corporations with the posi- 
tion of advantage which this gives it in a dispute with 
single laborers over wages, makes it absolutely neces- 
sary for labor to unite to maintain itself. 

For instance, how could workingmen, dependent on 
each day's wages for living, dare to take a stand which 
might leave them without employment if they had not 
by small assessments accumulated a common fund for 
their support during such emergency? In union they 
must sacrifice some independence of action, and there 
have sometimes been bad results from the tyranny of 
the majority in such cases ; but the hardships which 
have followed impulsive resort to extreme measures have 
had a good effect to lessen them. Experience, too, is 
leading to classification among the members, so that the 
cause of the skilled and worthy shall not be leveled down 
to that of the lazy and neglectful. This is being done, 
I am told, by what is called the maximum and minimum 
wage. 

CONTROVERSY CONCERNS MORE THAN WAGES 

The diverse interests of capital and labor are wider 
considerably than the mere pecuniary question of the 
amount of wages. They cover all the terms of the employ- 
ment and include not only the compensation but also the 
circumstances that affect the comfort and condition of 
the workingmen, including the daily hours of work, the 
place in which they work, the provisions for their safety 



250 



LABOR AND CAPITAL 



from accident, and everything else that is germane to 
the employment. 

GOOD EFFECT OF LABOR UNIONS LEGISLATION 

The effect of the organization of labor, on the whole, 
has been highly beneficial in securing better terms for 
employment for the whole laboring community. I have 
not the slightest doubt, and no one who knows anything 
about the subject can doubt, that the existence of labor 
unions steadies wages. More than this, it has brought 
about an amelioration of the condition of the laborers 
in another way. The really practical justification for 
popular representative government rests on the truth 
that any set of men or class in a political community are 
better able to look after their own interests, and more 
certain to keep those interests constantly in mind, than 
the members of any other class or set of men, however 
altruistic. This truth is fully exemplified in the course 
which legislation has taken since labor has organized 
and has made a systematic effort to secure laws to pro- 
tect the workingman by mandatory provision against 
the heartlessness or negligence of the employer. Labor 
unions have given great attention to factory acts which 
secure a certain amount of air and provision for the 
safety of employees, to the safety-appliance acts in re- 
spect to railroads, to fixing the law governing the lia- 
bility of railroads to their employees for injuries sus- 
tained by accident, to the restriction of child labor in 
factories, and to similar remedial legislation. The in- 
terest of the workingman has been more direct in these 
matters than even that of the philanthropists, and he 
has pressed the matter until in the legislation of nearly 
every state the effect of his influence is seen. 



LABOR AND CAPITAL 



251 



WISE ATTITUDE OF CAPITALIST TOWARD ORGANIZED LABOR 

What the capitalist, who is the employer of labor, 
must face is, that the organization of labor — the labor 
union — is a permanent condition in the industrial world. 
It has come to stay. If the employer would consult his 
own interest, he must admit this and act on it. Under 
existing conditions the blindest course that an employer 
of labor can pursue is to decline to recognize labor 
unions as the controlling influence in the labor market 
and. to insist upon dealing only with his particular em- 
ployees. Time and time again one has heard the indig- 
nant expression of a manager of some great industrial 
enterprise that he did not propose to have the labor 
union run his business ; that he would deal with his own 
men, and not with outsiders. 

The time has passed in which that attitude can be 
assumed with any hope of successfully maintaining it. 
What the wise managers of corporate enterprises em- 
ploying large numbers of laborers will do, is to receive 
the leaders of labor unions with courtesy and respect and 
listen to their claims and arguments as they would to the 
managers of any other corporate interest with whom 
they were to make an important contract affecting the 
business between them. At times some labor leaders are 
intoxicated with the immense power that they exercise in 
representing thousands of their fellow-workers and are 
weak enough to exhibit a spirit of arrogance. Dealing 
with them is trying to the patience of the employer. So, 
too, propositions from labor unions sometimes are so 
exorbitant in respect to the terms of employment as 
literally to deprive the manager of the control which he 
ought to retain over the laborers employed in his busi- 
ness. This is to be expected in a comparatively new: 



252 



LABOR AND CAPITAL 



movement and is not to be made a ground for condemn- 
ing it. 

On the other hand, the arrogance is not confined to 
one side. We all of us know that there are a number of 
employers who have the spirit of intolerance and sense 
of power because of their immense resources, and that 
their attitude is neither conciliatory nor likely to lead 
to an adjustment of differences. The wise men among 
the employers of labor and the labor leaders are those 
who discard all appearance of temper or sense of power 
and attempt by courteous consideration and calm dis- 
cussion to reach a common ground. One of the great 
difficulties in peaceful adjustments of controversies be- 
tween labor and capital is the refusal of each side to 
take time to understand the attitude of the other. The 
question which troubles the capitalist, of course, is how 
an increase in wages or a maintenance of wages will 
affect the profits of his business. The question which 
troubles the workingman is how much he can live on and 
what he can save from his wages. And these things 
are affected by many different circumstances, including, 
on the one hand, the condition of the market for the 
merchandise which is being manufactured and the other 
elements in the cost of operating the enterprise, and, on 
the other, the rate of rent and the price of necessaries of 
life. If the leaders of the workingmen believe that the 
employer is considering their argument and weighing 
it, and the labor leaders manifest an interest in the 
conditions with reference to expense and profit of the 
employer, the possibility of an adjustment is much 
greater than when each occupies a stiff and resentful 
attitude against the other. 

The great advantage of such organizations as the 
Civic Federation is that they bring capitalists and labor 



LABOR AND CAPITAL 



leaders together into a common forum of discussion and 
cast a flood of light in which each party to the con- 
troversy derives much valuable information as to the 
mental attitude and just claims of the other. I do not 
think it a mere dream either to hope that by reason of 
this friendly contact between employers and labor lead- 
ers, labor unions may be induced to assist the cause of 
honest industry by bringing to bear the moral force of 
the public opinion of the union to improve the sobriety, 
industry, skill and fidelity to the employer's interests of 
the employee. Indeed, the rules of some labor unions 
already contain evidence of a desire to effect such a 
result. 

ARBITRATION 

This brings me to the question of arbitration. It 
goes without saying that where an adjustment can not 
be reached by negotiation, it is far better for the com- 
munity at large that the differences be settled by sub- 
mission to an impartial tribunal and agreement to abide 
its judgment, than by resort to a trial of resistance and 
endurance, by lockouts and strikes and the other means 
used by the parties to industrial controversies in fight- 
ing out the issues between them. Not infrequently one 
side or the other — but generally the capitalist side — 
will say in response to a suggestion of arbitration that 
there is nothing to arbitrate; that their position is so 
impregnable from the standpoint of reason that they 
could not abide judgment against them by any tribunal 
in a matter subject to their voluntary action. 

In such a case, arbitration as a method of settlement 
is impossible, unless the system of compulsory arbitra- 
tion is adopted. It is a very serious question whether 
under our Constitution a decree of a tribunal under a 



254 



LABOR AND CAPITAL 



compulsory arbitration law could be enforced against 
the side of the laborers. It would come very close to 
the violation of the thirteenth amendment, which forbids 
involuntary servitude. It has been frequently decided 
that no injunction can issue which will compel a man to 
perform his contract of employment, and that on the 
ground that while the breach of his contract may give 
rise to a claim for damages, he can not be compelled, ex- 
cept in the peculiar employments of enlistment in the 
Army and service on a ship, specifically to perform a 
labor contract. Hence, compulsory arbitration does 
not seem to be the solution. 

MASSACHUSETTS PLAN 

A method has been adopted in Massachusetts and 
some other states, and, indeed, has practically been 
adopted by President Roosevelt, in respect to the settle- 
ment of these labor controversies which has substantial 
and practical results. That is a provision of law by 
which an impartial tribunal shall investigate all the 
conditions surrounding the dispute, take sworn evidence, 
draft a conclusion in respect to the merits of the issue 
and publish it to the world. There often are disputes 
between great corporate employers and their employees 
which eventuate in a strike, and the public finds it im- 
possible to obtain any reliable information in respect to 
the matter because the statements from both sides are 
so conflicting. 

We can not have a great labor controversy or a great 
strike without its affecting injuriously a great many 
other people than those actually engaged in it. The 
truth is, that the class of capital and the class of labor, 
represented on the one side by the managers of the great 
corporations and on the other side by the leaders of the 



LABOR AND CAPITAL 



255 



great labor unions, do not include all the members of the 
community by a great deal. In addition to them are 
the farming community, the small merchants and store- 
keepers, the professional men, the class of clerks, and 
many other people who have nothing to do with manual 
labor — skilled or unskilled — and who do not own shares 
in the stock of industrial or other enterprises requiring 
capital to carry them on. These are the middlemen, so 
to speak, in the controversy. The views of the mem- 
bers of this body make up the public opinion that, it is 
so often said, finally decides labor controversies. It is 
for the information of this body in the community that 
such a provision as that of the Massachusetts law is ad- 
mirably adapted. That statute does not provide for 
compulsory arbitration, but it comes as near it in prac- 
tical affairs as our system of constitutional law will 
permit. 

ANTHRACITE COAL ARBITRATION 

One of the instances, most striking in the history of 
this country, of the possibility of bringing capital and 
labor together to consider the question from a stand- 
point of reasonableness and patriotism is the settlement 
of the Pennsylvania anthracite coal strike. That, of 
course, was by arbitration. And it was brought about 
through the influence of the President, who had no offi- 
cial relation to either side, but who as the first citizen 
of the country was deeply interested in preventing the 
cataclysm to which things seemed to be tending in the 
anthracite coal region. The permanence of the settle- 
ment which was there effected is a triumphant vindica- 
tion of what was done. And it illustrates the possi- 
bilities when opponents in such controversies can be 
brought face to face and in the presence of impartial 



256 



LABOR AND CAPITAL 



persons be made to discuss all the circumstances sur- 
rounding the issue. 

STRIKES COSTLY 

I shall not stop to cite statistics to show the enor- 
mous loss in the savings of labor as well as the savings 
of capitalists which strikes and lockouts have involved. 
Time was when the first resort of the labor leader was to 
order a strike. But experience has taught both sides 
the loss entailed, and strikes are now much less lightly 
entered upon, especially by the more conservative labor 
unions. Everybody admits their destructive character 
and that all means should be resorted to to avoid them. 
Still, there are times when nothing but a strike will ac- 
complish the legitimate purpose of the laborer. 

LEGAL RIGHT TO STRIKE 

And, now, what is the right of the labor union with 
respect to the strike? I know that there has been at 
times a suggestion in the law that no strike can be 
legal. I deny this. Men have the right to leave the 
employ of their employer in a body in order to impose on 
him as great an inconvenience as possible to induce him 
to come to their terms. They have the right in their 
labor unions to delegate to their leaders the power to say 
when to strike. They have the right in advance to 
accumulate by contribution from all members of the 
labor union a fund which shall enable them to live dur- 
ing the pendency of the strike. They have the right 
to use persuasion with all other laborers who are invited 
to take their places, in order to convince them of the 
advantage to labor of united action. It is the business 
of courts and of the police to respect these rights with 
the same degree of care that they respect the right of 



LABOR AND CAPITAL 



257 



owners of capital to the protection of their property 
and business. 

CHANGE OF PUBLIC SENTIMENT TOWARD UNIONS 

I have thus considered the necessity and justification 
of labor unions and their legal power. Those leaders 
of labor unions who have learned to pursue conservative 
methods have added greatly to the strength of their 
cause, and have given the unions a much better stand- 
ing with the great body of the people who are neither 
capitalists nor laborers, and only favor the greatest 
good for the greatest number. I am inclined to think 
that the popular resentment against the revelations of 
corporate lawlessness may have had something to do 
with this change of sentiment. 

A resort to violence, or other form of lawlessness, on 
behalf of a labor union, properly merits and receives 
the sharpest condemnation from the public, and is quite 
likely to lose the cause of labor its support in the par- 
ticular controversy. 

NECESSITY FOR CONSIDERING ABUSES 

I have been discussing the relations of capital and 
labor and the lawful scope of their action, on the as- 
sumption that they do not violate the law or the rights 
of any member of the community, and I am glad to say 
that I believe that this assumption is correct with re- 
spect to the great majority of those engaged as capital- 
ists and of those engaged as wage-earners ; but it would 
be a very insufficient consideration of the relations of 
labor and capital if I did not take up the abuses, law- 
lessness and infractions of others' rights, of which some 
of the combiners of capital and some of the wage- 
earners — members of labor unions — have been from time 



258 



LABOR AND CAPITAL 



to time guilty and did not consider further the remedy 
for the restraint of these evils. 

ABUSES OF CAPITAL COMBINATIONS 

For the sake of clearness in examining into the char- 
acter of corporate evils and abuses which need restraint 
and punishment, we may divide corporations guilty of 
them into industrial corporations organized for the pur- 
pose of manufacture and sale of merchandise, and into 
railroad and other corporations organized for the trans- 
portion of passengers and goods. 

INDUSTRIAL CORPORATIONS 

Let us deal first with industrial corporations. The 
valuable consideration moving to the public for confer- 
ring the franchise necessary in the incorporation of such 
companies is the public benefit to be derived in the lower- 
ing of prices. The temptation to the managers, how- 
ever, when the enterprises become very large, is to sup- 
press competition and maintain prices, and thus to deny 
to the public its proper share in the benefit sought to 
be attained and to appropriate to the corporate owners 
all the profit derived from improved facilities of pro- 
duction. 

One method of suppressing competition is by agree- 
ments between all the large concerns engaged in the 
same business to limit the output and maintain prices. 
Such agreements are usually secret and are difficult for 
public officials to obtain proof of ; but when these agree- 
ments do become public and are successfully prosecuted, 
this method is enjoined and abandoned, and the inde- 
pendent corporations that acted together under secret 
agreements to maintain prices are absorbed into one 
great corporation, so that the large proportion of the 



LABOR AND CAPITAL 



259 



producing capital in a single industry is placed under one 
control. Then competition with the trust, thus formed, 
is excluded by ingenious contracts of sale with middle- 
men, distributers, and retail dealers, who are coerced 
by the agents of the trust into a maintenance of retail 
prices and a withdrawal of all patronage from smaller 
independent and competing producers through the 
knowledge and fear that the trust in times of active 
demand for its products will either refuse to sell or will 
sell only at discriminating prices to those who do not 
comply with its demand. 

ABUSES OF RAILWAY CORPORATIONS 

The second class of corporations — that is, the rail- 
way and transportation companies — have misused their 
great powers to promote the unlawful purposes of these 
industrial combinations. One of the largest elements 
going to make up the selling price of a commodity in 
any part of the country is the cost of transportation 
from the place of manufacture. If one business concern 
can secure lower rates of freight in the transportation of 
its merchandise to its customers than another, the former 
will necessarily drive the latter out of business. This is 
exactly what has happened. The largest concerns con- 
trolling enormous shipments and able as between com- 
peting roads to determine which shall enjoy the profits 
of the transportation, have induced and sometimes 
coerced the railway companies into giving them either 
secret rates or open public rates so deftly arranged with 
a view to the conditions of the larger concern, as to make 
it impossible for its would-be business competitors to 
live. The rebate of a very small amount per hundred- 
weight of goods shipped by any one of the great indus- 
trial corporations will pay enormous dividends on the 



260 



LABOR AND CAPITAL 



capital invested. The evils of railroad management can 
be summed up in the words " unjust discrimination." 

INTEREST OF WAGE-EARNERS IN SUPPRESSION OF THESE 

ABUSES 

Wage-earners are not injuriously affected in their 
terms of employment directly by such violations of law by 
combinations of capital as I have described. But they 
are very seriously affected in another way. The main- 
tenance of such unlawful monopolies is for the purpose 
of keeping up the prices of the necessities of life, and 
this necessarily reduces the purchasing power of the 
wages which the wage-earners receive. This is a serious 
detriment to them and a real reason why they should 
condemn such corporate abuses and sympathize with the 
effort to stamp them out. It is not that they should 
sympathize with an effort to destroy such great corpo- 
rate enterprises because they employ enormous numbers 
of wage-earners and lawfully and normally increase the 
capital from which the wage fund is drawn, but they 
should and do vigorously sustain the policy of the 
Government in bringing these great corporate enter- 
prises within the law and requiring them to conduct 
their business in accordance with the statutes of their 
country. I have already said that they should dis- 
criminate in respect to legislation affecting their corpo- 
ration, and should not assume that simply because it 
burdened the enterprise from which they derived their 
wages it was in their interest ; but I would invoke with 
the utmost emphasis their approval of the present inter- 
state-commerce law as needed to keep the railroads 
within the law. 



LABOR AND CAPITAL 



261 



VIOLENCE IN INTEREST OF CAPITAL 

In rare instances corporate managers have entered 
into a course of violence to maintain their side of a labor 
controversy. They have justified it on the ground that 
they were simply fighting fire with fire, and that if the 
labor union proceeded to use dynamite they would use 
dynamite in return. I can not too strongly condemn 
this course or this argument. No amount of lawless- 
ness on the part of the labor striker will justify law- 
lessness on the part of the employer. Such a course 
means a recurrence of civil war and anarchy. 

A second abuse which employers are sometimes guilty 
of is what is technically known as blacklisting, by which 
laboring men, solely because they may have been advo- 
cates of a strike, or have been against a compromise in a 
labor dispute, are tagged by one employer of labor, and 
all other employers of labor are forbidden on penalty of 
business ostracism to give them a means of livelihood. 
This is unlawful and should be condemned. It is the 
counterpart of the boycott, or indeed it is itself a boy- 
cott in one form, to which I shall make reference here- 
after. 

ABUSES OF LABOR 

What are the abuses which not infrequently proceed 
from some of the members of united labor? They are, 
first, open violence and threats of violence to prevent the 
employment of other workingmen in the places which 
such members have left on a strike, with the hope that 
they will thus prevent their former employer from being 
able to carry on his business. Of course this is the 
most effective method, if successful, of bringing the 
employer to terms. If the demand for labor is such 



262 



LABOR AND CAPITAL 



that many persons of the same craft as those who strike, 
not members of the labor union, are idle, it will be easy 
for the employer to replace the strikers. They will be 
out of a job and he will continue his business. 

It follows, therefore, that the wisest time for skilled 
or other labor to strike is when there is a great demand 
for labor, and it is difficult for the employer to replace 
those who leave him. But if there are other laborers 
available, then there are only two ways by which the 
strikers can accomplish their purpose, either by actual 
or threatened violence to those who would take their 
places, or by persuading them in the interest of all 
labor that they should j oin their union, receive the bene- 
fits of the common fund for support during enforced 
idleness, and join in the refusal to aid the employer in 
his extremity. Violence and threatened violence are of 
course unlawful and are strongly to be condemned. 
Persuasion not amounting in effect to duress is lawful. 

BOYCOTTS 

Another method by which wage-earners sometimes at- 
tempt to coerce their employer into acquiescence in their 
demands is what is called a boycott. It is a method 
by which the striking employees and their fellows of 
their union attempt to coerce the whole community into 
a withdrawal of all association from their former em- 
ployer by threatening the rest of the community that if 
they do not withdraw their association from such em- 
ployer they will visit each one of them with similar 
treatment. This is a cruel instrument and has been 
declared to be unlawful in every court with whose de- 
cisions I am familiar. The Anthracite Strike Commis- 
sion, which was selected at the instance of President 
Roosevelt and which had upon it such a distinguished 



LABOR AND CAPITAL 



263 



jurist as Judge George Gray, of Delaware, and Mr. 
Clark, the president of one of the great labor organiza- 
tions of the country, and other men entirely indifferent 
as between labor and capital — men selected by agree- 
ment between the employers and the employees in that 
great controversy — used the following language in re- 
spect to the boycott : 

" It also becomes our duty to condemn another less 
violent, but not less reprehensible, form of attack upon 
those rights and liberties of the citizens which the public 
opinion of civilized countries recognizes and protects. 
The right and liberty to pursue a lawful calling and to 
lead a peaceable life, free from molestation or attack, 
concerns the comfort and happiness of all men, and the 
denial of them means the destruction of one of the 
greatest, if not the greatest, of the benefits which the 
social organization confers. What is popularly known 
as the boycott (a word of evil omen and unhappy origin) 
is a form of coercion by which a combination of many 
persons seek to work their will upon a single person or 
upon a few persons by compelling others to abstain 
from social or beneficial business intercourse with such 
person or persons. Carried to the extent sometimes 
practiced in aid of a strike, and as was in some in- 
stances practiced in connection with the late anthracite 
strike, it is a cruel weapon of aggression, and its use 
immoral and antisocial." 

To say this is not to deny the legal right of any man 
or set of men voluntarily to refrain from social inter- 
course or business relations with any persons whom he 
or they, with or without good reason, dislike. This 
may sometimes be un-Christian, but it is not illegal. 
But when it is a concerted purpose of a number of per- 
sons not only to abstain themselves from such inter- 



264 



LABOR AND CAPITAL 



course, but to render the life of their victim miserable 
by persuading and intimidating others to refrain, such 
purpose is a malicious one, and the concerted attempt to 
accomplish it is a conspiracy at common law, and merits 
and should receive the punishment due to such a crime. 

I may add that the same Commission visited black- 
listing with similar condemnation. 

.EGALi REMEDIES FOR ABUSES 

What are the remedies by which a person injured 
may be protected against the illegal acts of combina- 
tions of capital and of combinations of labor? First, 
if the injury sought to be inflicted is one which will be 
inadequately compensated for in money damages, one 
can apply to a court of equity to prevent the injury 
from being done, and that court can, in advance of the 
proposed violation of the plaintiff's rights, determine 
exactly what those rights are and advise the defendant 
accordingly ; or he can wait until the acts are performed 
and then, by suit for damages, he can make himself 
whole if he can. 

REMEDY BY INJUNCTION PREFERRED 

In cases of unlawful combinations of capital, as well 
as of such combinations of labor, the method in equity 
by securing an injunction seems to be preferred by those 
who are about to be injured. In every statute which 
has been enacted to denounce the improper use of capi- 
tal to secure illegal restraints of trade and illegal 
monopolies, a specific provision has been inserted en- 
abling those who are injured or affected to bring an 
equity proceeding to enjoin the carrying on of the im- 
proper methods about to be attempted. In the same 
way, when labor unions or members of labor unions or 



LABOR AND CAPITAL 



265 



workingmen on a strike resort to methods destructive of 
the business of their employer and his property, the 
employer deems it the most convenient method of de- 
fending himself to apply to a court of equity for an 
injunction against those who give indication of their 
intention to carry on such methods. 

CRITICISM OF INJUNCTION REMEDY 

This remedy by injunction has been very severely de- 
nounced and criticised, on the ground that it places in 
the hands of a judge legislative, judicial and executive 
powers; that it enables him to make the law for one 
case against a particular individual and if he does not 
abide by it to try him and punish him. When this ob- 
jection is analyzed it is found to be unjust. 

CRITICISM UNJUST 

An injunction suit does not differ in the slightest de- 
gree from a suit brought after the event, so far as the 
function of the court is concerned in declaring the law, 
except that the court declares the law in respect of 
anticipated facts rather than in respect of those which 
have happened. He has no authority to make law. In 
an injunction suit, as in any other suit, he merely in- 
terprets the law and applies it to the circumstances. 
His judgment in the one case involves exactly the same 
precedents and the same rules of law as in the other. 
In order to save the party plaintiff from having to 
bring suit to recover for an injury that he is going to 
suffer, he says, "This is an unlawful injury; and as 
you threaten to do it I enjoin you from doing it." 

PREVENTION BETTER THAN CURE 

Certainly, prevention is better than cure, and it is 
no wonder that a man who is about to have his business 



266 



LABOR AND CAPITAL 



injured or his property destroyed prefers to prevent the 
injury rather than to allow it to occur. Neither a suit 
in damages nor a criminal prosecution is likely to bring 
him back his property or to restore his loss. More- 
over, in cases of boycott, in many states, there is no 
provision for criminal prosecution. 

HISTORY OF WRIT OF INJUNCTION 

I wish to invite attention to this writ of injunction, 
which is one of the most beneficial remedies known to 
the law, and to trace its history and show how useful it 
has been in the past for the purpose of preventing 
injustice. 

Originally, in England, from which we get our pro- 
cedure and most of our law, the King was supposed to 
decide cases through his judges of the King's bench or 
of the common pleas. The common law was rather 
rigid and severe, especially in holding persons to the 
letter of their contracts, and judgments went for the 
plaintiff on this strict interpretation that really shocked 
the conscience. And so, after a while, the people began 
to appeal to the King to save them from the severity 
of his own courts. He turned the matter over to the 
lord keeper of the great seal, and said, " Work out 
equity in this case." The way the lord keeper worked 
it out was not to issue any direction to the court of 
King's bench or the common pleas ; but he took hold of 
the plaintiff in the suit and threatened him with ex- 
communication if he did not stop the suit and do that 
justice which equity required. 

In other words, he enjoined the plaintiff from pro- 
ceeding with the suit in the court of the King's bench 
or of the common pleas, as the case might be, and 
brought him into what grew to be a court of equity 



LABOR AND CAPITAL 



267 



known as the court of chancery. As the lord keeper 
in those days was an ecclesiastic, he exercised power over 
the consciences of the litigants, and the threat of ex- 
communication was generally sufficient to enforce what 
he wished. Subsequently, the lord keeper ceased to be 
a bishop and became known as the lord chancellor, and 
after the court of equity had been established, violation 
of the injunction was punished by imprisonment instead 
of excommunication. 

USEFULNESS OP WRIT 

Let me take a case that illustrates the usefulness of 
the writ of injunction. At common law, when a man 
wished to borrow $500 on his farm which was worth 
$10,000 he gave a mortgage to secure it. The mort- 
gage was a conveyance of the title to the land with the 
condition that the title should become absolute if the 
money was not paid on the date mentioned in the mort- 
gage. If the money was not paid, the creditor could 
put the debtor out of possession by suit and for $500 
become the owner of a farm which was worth $10,000. 
In such a case the lord keeper said to the plaintiff : 
" Here, you are trying to get this f arm for $500 when it 
is worth $10,000. That is not equitable, and I will not 
let you do it. I will enjoin you from continuing that 
suit, because you are after something that is unjust, 
and I will make you come in before me and settle this, 
and if the defendant is not able to pay the $500 and 
interest we will sell the farm and pay you the $500 and 
interest and turn over the balance to the defendant." 
That was an equitable decision, and it was made effec- 
tive by the power of injunction. 

A man leases a farm, with a row of beautiful trees, 
to a tenant. The tenant advises him that he is going 



268 



LABOR AND CAPITAL 



to cut the trees down during his tenancy. What is the 
landlord to do? Is he to let the tenant cut his trees 
down and then sue him for the value of the trees? No. 
Equity suggests the remedy that he go into court and 
enjoin the man and prevent injury which could not be 
compensated for in damages. 

A man owns a lucrative business and a numerous set 
of people conceive a prejudice against him or a desire 
to injure him, and institute a boycott against him and 
threaten everybody that they will withdraw their pat- 
ronage, which is valuable, from anybody that has any- 
thing to do with him. In that way he loses a lot of 
customers. Now, is not it better that he should apply 
to the court to enjoin them from taking that course, 
and inflicting injury on him that he can not measure in 
damages, than that they should be permitted to destroy 
his business and he should have the burden of a lawsuit 
afterwards, with all the uncertainty as to damages and 
the doubt about getting his money even if he secured a 
j udgment ? 

So, too, where a body of strikers by continued acts 
of violence, trespass, constituting a nuisance, attempts 
to stop his business, it is peculiarly difficult for him 
to estimate the injury he suffers, and a judgment for 
money would be a very inadequate remedy. 

ABUSE OF WRIT OF INJUNCTION 

But it is said that the writ of injunction has been 
abused in this country in labor disputes, and that a 
number of injunctions have been issued that ought never 
to have been issued. I agree that there has been abuse 
in this regard. President Roosevelt referred to it in his 
last message. I think it has grown chiefly from the 
practice of issuing injunctions ex parte; that is, with- 



LABOR AND CAPITAL 



269 



out giving notice or hearing to the defendant. The 
injustice that is worked is in this wise: Men leave em- 
ployment on a strike, intending to conduct themselves 
peaceably and within the law. The counsel for the 
employer visits a judge, presents an affidavit in which 
an averment is made that violence is threatened, injur}' 
to property and injury to business. And accordingly 
on this affidavit the judge issues a temporary restrain- 
ing order ex 'parte against the defendants who are 
named in the petition or bill. The broadest expressions 
are used in the writ — frequently too broad. The de- 
fendants are workingmen, not lawyers. They are not 
used to processes of the court. The expressions of the 
writ are formidable. A doubt arises in their minds as 
to the legality of what they are about to do. The 
stiffening is taken out of the strike, the men drop back 
and the strike is over, and all before they have had a 
chance in court to demonstrate, as they might, that 
they had no intention of doing anything unlawful or 
doing any violence. 

FAVORS REQUIRING NOTICE 

Under the original Federal judiciary act, it was not 
permissible for the Federal courts to issue an injunc- 
tion without notice. There had to be notice and, of 
course, a hearing. I think it would be entirely right 
in this class of cases to amend the law and provide that 
no temporary restraining order should issue at all until 
after notice and a hearing. Then the court could be 
advised by both sides with reference to the exact situa- 
tion, and the danger of issuing a writ too broad or of 
issuing a writ without good ground would generally be 
avoided. 



270 



LABOR AND CAPITAL 



FAVORS REQUIRING A DIFFERENT JUDGE IN CONTEMPT 
PROCEEDINGS FROM THE JUDGE ISSUING INJUNCTION 

There is another objection made, and that is that the 
judge who issues the writ has a personal sensitiveness in 
respect to its violation that gives him a bias when he 
comes to hear contempt proceedings on charge of 
disobedience to the order, and makes it unfair for him 
to impose a punishment if conviction follows: I think 
few judges on the bench would allow such a considera- 
tion to affect them, but I agree that there is a popular 
doubt of the judge's impartial attitude in such a case. 
For that reason, I would favor a provision allowing 
the defendant in contempt proceedings to challenge the 
judge issuing the injunction, and to call for the desig- 
nation of another judge to hear the issue. I do not 
think it would seriously delay the hearing of the cause, 
and it would give more confidence in the impartiality 
of the decision. It is almost as important that there 
should be the appearance of justice as that there should 
be an actual administration of it. 

OBJECTION TO TRIAL, OF CONTEMPT BY JURY 

But now it is said, Why not have a trial by jury? 
The reason why this is objectionable is because of the 
delay and of the character of jury trial. It would 
greatly weaken the authority and force of an order of 
court if it were known that it was not to be enforced 
except after a verdict of jury. Never in the history 
of judicial procedure has such a provision intervened 
between the issue of an order of court and its enforce- 
ment. I am quite willing to hedge around the exercise 
of the power to issue the writ of injunction with as many 
safeguards as are necessary to invite the attention of 



LABOR AND CAPITAL 



the court to the care with which he shall issue the writ ; 
but to introduce another contest before the writ shall be 
enforced, with all the uncertainties and digressions and 
prejudices that are injected into a jury trial, would 
be to make the order of the court go for nothing. 

PLAINTIFF ENTITLED TO ANCIENT REMEDY OF 
INJUNCTION 

What the plaintiff in such cases is asking to secure 
is protection of his property and his business from a 
constant series of attacks. An injunction offers a 
remedy which is not given either by criminal prosecu- 
tions or the suit for damages. The plaintiff is not try- 
ing to punish somebody ; he is trying to protect himself 
after the court shall have defined what his rights are. 
That right has been his in cases of this general char- 
acter for years, and why should he be asked to give it 
up now? 

LABOR UNIONS SHOULD CARRY DECISIONS THEY CONDEMN 
TO COURTS OF LAST RESORT 

If, whenever a court issues an injunction that is im- 
properly worded, that goes too far, or that ought never 
to have been granted, the labor union interested will 
take the matter up to the court of last resort, it will 
secure a series of decisions that will prevent the issue 
of injunctions such as some of those of which they now 
complain. The labor union has a fund, and it could 
not be devoted to a better purpose than fixing the law 
exactly as it should be under the decision of the court of 
last resort. I should not object at all to the definition 
of the rights of employer and of the withdrawing em- 
ployee in labor controversies by statute. I should think 
that an excellent way of making clear what is lawful 



LABOR AND CAPITAL 



and what is unlawful. But until that course is pur- 
sued, the rights of the parties to such controversies 
should be carefully defined by courts of last resort, and 
when this is done courts of first instance will keep within 
lawful bounds. 

CONCLUSION 

I fear I have wearied you with this long discussion. 
I have attempted to treat the matter from an impartial 
standpoint and without prejudice for or against capi- 
tal, or for or against labor. There is a class of capital- 
ists who look upon labor unions as vicious per se, and a 
class of radical labor unionists who look upon capital 
as labor's natural enemy. I believe, however, that the 
great majority of each class are gradually becoming 
more conciliatory in their attitude, the one toward the 
other. Between them is a larger class, neither capital- 
ist nor labor unionist, who are without prejudices, and 
I hope I am one of those. The effects of the panic 
are not over. We must expect industrial depression. 
This may be fruitful of labor controversies. I ear- 
nestly hope that a more conservative and conciliatory 
attitude on both sides may avoid the destructive strug- 
gles of the past. 



THE ACHIEVEMENTS OF THE REPUBLICAN 
PARTY 



DELIVERED AT KANSAS CITY, MISSOURI, BEFORE THE YOUNG 
MEN'S REPUBLICAN CLUB OF MISSOURI, 
FEBRUARY 10, 1908 

Fellow-Republicans : We meet to-day to celebrate the 
memory of Abraham Lincoln. One of the bases for the 
everlasting gratitude which the country owes him is the 
part he took in the successful establishment in national 
political control of the Republican Party. Lincoln was 
a party man, as all men must be who expect to leave 
their individual impress upon the political character of 
the Nation. 

A modern government of a people of 80,000,000 is 
complicated under any system. The difficulties of its 
management are not lessened when we commit its control 
to all males over the age of twenty-one, and call it a 
Republic. How is it possible to reduce the varying 
views of the entire population to one resultant execu- 
tive force which shall carry on this machine of govern- 
ment in the public interest and for the public weal? 
The problem has been solved by the institution of 
parties. A party can not be useful unless those who 
are members of it yield their views on some issues and 
unite with respect to the main policies to be pursued. 
The resultant solidarity is necessary to secure efficacy. 
The sense of responsibility for the continued successful 
operation of the government must furnish cohesive 
power. The party is the more efficient, in which the 
members are more nearly united on the great principles 
of governmental action. Though a party has its plat- 

273 



274 



THE ACHIEVEMENTS OF 



form, and on the faith of it has been elected to power, 
many issues may unexpectedly arise in the course of an 
administration not controlled by the party's declared 
principles. The disposition of such issues must depend 
on the ability and courage of the party leaders. A 
party may divide on a new issue until by a process of 
education the sounder view prevails, and the party be- 
comes united again in the enforcement of the new 
principle. As a party shows itself homogeneous, able to 
grasp the truth with respect to new issues, able to 
discard unimportant differences of opinion, sensitive 
with respect to the successful maintenance of govern- 
ment, and highly charged with the responsibility of its 
obligation to the people at large, it establishes its claim 
to the confidence of the public and to its continuance 
in political power. We are apt to deny to parties 
characteristics and traits like those of a person, but I 
venture to think that a history of political parties in 
which the description is clothed with life and truth 
must always treat them as having some personal at- 
tributes. 

The course of the Republican Party since its organi- 
zation in 1856, and its real assumption of control in 
1861, down to the present day, is remarkable for the 
foresight and ability of its leaders, for the discipline 
and solidarity of its members, for its efficiency and deep 
sense of responsibility, for the preservation and success- 
ful maintenance of the government, and for the greatest 
resourcefulness in meeting the various trying and diffi- 
cult issues which a history of now a full half century 
has presented for solution. It was born of a desire to 
maintain inviolate the union of the States. Its essence 
was that of nationalism, and its spirit was that of sac- 
rifice, no matter how great, to maintain the integrity 



THE REPUBLICAN PARTY 275 

of our whole country. The federalism of Washington, 
Marshall and Hamilton was the guide of its constitu- 
tional construction, and it did not hesitate, when the 
issue was presented, to submit its view of the great fun- 
damental instrument of our government to the arbitra- 
ment of a long and bloody war. The leader of the Re- 
publican party during the Civil War was Abraham 
Lincoln. In all the varieties of controversy with which 
it has since had to deal, it has never lost the inspira- 
tion of his leadership. 

When the Republican Party entered upon the war in 
1861, the only issue it was willing to fight out was that 
of the preservation of the Union. It did not then as- 
sume the burden of the complete abolition of slavery. 
There were many in its ranks who pressed for such a 
declaration, but the time had not come. The course of 
war made abolition inevitable, and Mr. Lincoln, who 
was the greatest politician of his age, led his party a 
long way by the Emancipation Proclamation. Even 
as he did this, he created a division in his party. It was 
one of the first instances in which the party showed 
its own power of self-preservation by gradually con- 
vincing the minority of the righteousness of the new 
issue. 

After the martyrdom of Lincoln came the period 
of reconstruction and the adoption of the so-called 
War Amendments. The Thirteenth Amendment gave 
to the negro the boon of freedom, but it left as children 
in the world four or five millions of people, not five per 
cent, of whom could read or write, and all of whom had 
been dependent upon others for what they ate and 
wore and did. Their emancipation was, of course, the 
first great step in their elevation as a race, but it in- 
volved at first great hardship and suffering and dis- 



276 THE ACHIEVEMENTS OF 



couragement, as all great changes in existing conditions 
must. Still the Thirteenth Amendment has accom- 
plished its purpose. 

The Fourteenth Amendment secured to the negro the 
equal protection of the laws of the State in which he 
lived. This is the amendment which, second to his 
emancipation, has become the most important in his 
development. Living in the same community in which 
he had been a chattel, the great danger was that legis- 
lation would be enacted which might prevent him from 
enjoying the same benefit from the guaranties of life, 
liberty and property that were extended to his white 
fellow-citizens. It was of the highest importance to him 
to be assured of those economic rights in the enjoyment 
and pursuit of which lay the hope of his future progress. 

The opportunity of the Southern negro lay, first, in 
education ; second, in the skill of his hands as a laborer 
and in his industry as a tiller of the soil ; and, third, in 
his capacity to save from his earnings sufficient to en- 
able him to accumulate capital to buy land and es- 
tablish his economic independence. Thus could he make 
himself useful to the community in which he lived and 
secure the respect which would certainly come to one 
showing himself indispensable to the growth and pros- 
perity of the South. Thus would flow all the incidents 
of power and influence to which he aspired. When we 
regard the history of the forty years through which the 
colored man of this country has been obliged to strug- 
gle, the progress which he has made, material and edu- 
cational, is wonderful. 

The third great War Amendment — the Fifteenth — 
forbade any State to deprive the negro of his vote on 
account of his color or previous condition of servitude. 
The operation of this amendment has not been as sue- 



THE REPUBLICAN PARTY 277 



cessful as that of the Thirteenth and Fourteenth. Nor 
is this surprising. Consider the condition of things im- 
mediately after the war. Here was a masterful people, 
who had been used to a social condition in which the 
negro occupied a servile status, brought by law to face 
the prospect of sharing political control with the poor, 
ignorant and bewildered masses, who but the day be- 
fore had been their property. Declarations of equality 
and popular rights and universal suffrage offer but a 
feather's weight against the inevitable impulses of hu- 
man nature. It was impossible that with the elements 
I have stated, there should not have been developed 
fraud and violence and illegality. It was impossible 
that that which was written on the tables of the funda- 
mental law or in the statute book should be immediately 
carried into effective execution. After a long struggle, 
the history of which I shall not recall, the negro's vote 
in the Southern States was made to count for nothing. 
Then the leaders of the South in many States came to 
realize the dreadful demoralization of all society if law 
was to be flouted and fraud was to constitute the basis 
of government. So they cast about to make the law 
square with the existing condition by property and edu- 
cational qualifications which should exclude most of the 
negro vote. 

This very desire to avoid the violent methods which 
were wont to overcome the colored vote in the South 
itself indicates a turn for the better. It is said, how- 
ever, and with truth, that these election laws are in- 
tended to be enforced by means of the discretion vested 
in election officers, so as to exclude the ineligible colored 
men with rigor and to allow the ineligible whites, who 
ought also to be excluded, to enjoy the franchise. De- 
plorable as this is, still the situation is by no means 



278 



THE ACHIEVEMENTS OF 



a hopeless one for the Southern negro and the political 
power that he may in the future exercise. In the first 
place, if he continues to increase in intelligence by the 
acceptance of his educational opportunities, and if in- 
dustrially he becomes a power, and thus gradually 
increases the number of his race who are eligible to 
vote in accordance with law, he will introduce into the 
electorate a body of individuals well qualified to act 
with common sense and judgment, and who, by their 
very position in the community, will give weight to the 
vote they cast. Their position and influence as a grow- 
ing representation of their race, qualified to exercise the 
right of suffrage, will become stronger and stronger. 
Such a gradual acquisition of political power will se- 
cure them real influence and an opportunity to help their 
race to further progress. The greatest friend the 
Southern negro is likely to have is the broad-minded 
Southern white man who sympathizes with the colored 
man and knows his value to the South. Nor is it unrea- 
sonable to hope that the men who have already sought 
to come within the law, and avoid violence, will ul- 
timately see the wisdom and righteousness of the equal 
enforcement of the law of eligibility against white and 
black. While I fully recognize the fact that the Fif- 
teenth Amendment has not accomplished all that it was 
intended to accomplish, and that for a time it seemed 
to be a dead letter, I am confident that in the end 
it will prove to be a bulwark equally beneficial with that 
of the Thirteenth and Fourteenth Amendments to an 
unfortunate, down-trodden, struggling race, to whom, 
in view of the circumstances under which they were 
brought to this country and the conditions of bondage 
in which they were continued for more than two cen- 
turies, we owe every obligation of care and protection. 



THE REPUBLICAN PARTY 279 



That which has been done for the benefit of the negro 
race is the work of the Republican Party. It is one 
of those great issues presented by the exigencies of the 
war which the party has had the firmness and courage 
to meet. The party has not yet been entirely success- 
ful in fully working out the problem, but nearly all 
that has been done has been done at its instance or with 
its aid. 

Another issue which the Republican Party found it- 
self pursued by as an outgrowth of the war was the 
question of money, and on that the party showed a 
marked capacity for reaching a unanimous and sound 
conclusion after much controversy within its ranks. In 
order to maintain the government during the dark days 
of the war, we departed from the gold and silver mone- 
tary medium and issued as currency paper promises of 
the Government to pay. The students of finance to-day 
are disposed generally to think that the issue of green- 
backs was not necessary to sustain the government, 
and that it might have been possible to conduct the 
enormous operations of the war and still retain gold and 
silver coin. However this may be, we found ourselves 
at the end of the war with a great volume of greenback 
currency and no means of redeeming it. For a time 
many members of the Republican Party seemed to 
think that the wise course to pursue was to reduce the 
evil by increasing our irredeemable obligations. They 
imbibed the theory of fiat currency, that the govern- 
ment might create money and pay all its debts by merely 
printing promises to pay. Gradually the greenback 
heresy was eliminated. The Republican Party sloughed 
off its diseased members and took the firm, solid and 
righteous position that it would redeem every dollar of 
its bonds and of its other indebtedness in coin of the 



280 THE ACHIEVEMENTS OF 



United States. On the 1st of January, 1878, specie 
payments were resumed and the paper of the govern- 
ment became as good as gold. 

In the decade between 1880 and 1890, the greater 
production of silver had cheapened the metal in com- 
parison with gold, and quack remedies for financial 
troubles, in the form of the greater use of silver money, 
seized a large part of the electorate, both Republicans 
and Democrats. The silver question was fought out for 
twelve or fifteen years, and in that time many of the 
Republican leaders supported doctrines which now 
would seem heretical. Gradually, however, the lines were 
formed. The Democracy under Mr. Bryan advanced 
the theory that the free coinage of silver, which was in 
effect repudiation of half of every debt, was the solution 
of all our difficulties, while the Republican Party, gradu- 
ally and reluctantly, took its position in favor of the 
single gold standard and against any depreciation of it 
to make easier payment of debts. In the great battle 
of 1896 the Republican Party again stood for the 
maintenance of the integrity of the nation. The fight 
was against odds produced by a great industrial de- 
pression, and against the most sophistical arguments. 
The Republican Party maintained a campaign of edu- 
cation among the wage-earners and the farmers, which 
ultimately led to the complete defeat of this second 
financial heresy which had threatened the integrity 
of our business structure. 

One of the great policies to which the Republican 
Party has been pledged from the beginning has been the 
protective system, by which industries have been di- 
versified and domestic manufactures and farm produc- 
tions have been enormously developed. The method con- 
sists in the imposition of customs duties upon imported 



THE REPUBLICAN PARTY 281 



products equal to the difference in the cost of producing 
the article in foreign countries and in this country, 
allowing for a reasonable profit to the home producer. 
Our whole business structure rests on the system, and the 
wage-earners dependent on it are myriad. The system 
has continued without a break from the time of the 
Morrill tariff in 1861 until the present day, except 
that during the second administration of Mr. Cleve- 
land an attempt was made to pass a revenue tariff, 
which failed, but resulted in the passage of a tariff 
which illustrated no theory of taxation at all and only 
brought disaster. There was put in force by the Re- 
publicans a new tariff in 1890, called the McKinley 
Tariff, which was repealed by the Gorman- Wilson Tariff 
of 1893, which in turn was repealed by the Dingley 
Tariff of 1897. In the ten years which have elapsed 
since the enactment of the Dingley Tariff, the condi- 
tions have so changed as to make a number of the 
schedules under that tariff too high and some too low. 
This renders it necessary to re-examine the schedules in 
order that the tariff shall be placed on a purely pro- 
tective basis. By that I mean it should properly pro- 
tect, against foreign competition, and afford a rea- 
sonable profit to all manufacturers, farmers and busi- 
ness men, but should not be so high as to furnish a 
temptation to the formation of monopolies to appro- 
priate the undue profit of excessive rates. 

In 1898 came the war with Spain. While both parties 
lent their aid in Congress and there was an outburst 
of patriotism in all sections, the war, for which we 
were so little prepared, had to be conducted by the 
Republican Party. Whatever efficiency was displayed 
in its maintenance was due to that Party, and the ability 
with which it could meet a new issue. After the Spanish 



282 THE ACHIEVEMENTS OF 

War, comparatively so short and bloodless in its extent, 
there have developed national questions for settlement 
of greater importance than any save those of the great 
Civil War. The Republican Party has marched up to 
their solution with the same courage, the same skill and 
the same persistence that it has shown in respect to all 
the questions arising in its history. After peace with 
Spain was signed, Congress left to McKinley to pioneer 
in respect to the government of Porto Rico, Cuba and 
the Philippines, imposing only as to the Cuban policy 
the condition that there should be an early date for turn- 
ing over that island to the people of Cuba in accordance 
with the self-denying ordinance known as the Teller 
resolution. Congress did not interfere in the Philippines 
for a full four years, and in that time McKinley had 
worked out a policy which substantially received the 
full confirmation of Congress and to which the Repub- 
lican Party is to-day pledged. The policy of expan- 
sion is what distinguishes the administration of Mc- 
Kinley and adds another to the list of patriotic victories 
of the Republican Party. By this policy the United 
States has become a world power. In the course of it 
we have built up a navy, not large enough as yet, but 
large enough to be respectable and to make our influ- 
ence felt for peace and good international morals the 
world over. 

In every one of these policies which I have thus enu- 
merated — in the war of the Union — the building up 
and protection of the negro race with the war amend- 
ments — in the maintenance of the sacredness of our 
promises to pay contained in the greenbacks and in the 
national bonds — in our maintenance of the national in- 
tegrity by an adherence to the gold standard and a 
refusal to enter upon the free coinage of silver — in 



THE REPUBLICAN PARTY 283 



the support of a policy of protection under which our 
manufactures and our farm productions have found a 
prosperity never before known in the world — in the 
policy of expansion and the development of the un- 
fortunate peoples intrusted to our care by Providence 
— and in our progress toward world-wide influence — we 
have encountered the official and persistent opposition 
of the Democratic Party. At times we have been beaten. 
Only twice, however, in all that remarkable history of 
48 years have we lost the confidence of the people of 
the United States to the point of their turning over 
the government to a Democratic executive. I venture to 
say that neither in this nor any other country can be 
disclosed such a remarkable record of arduous deeds 
done as in that history of a half a century of the Re- 
publican Party. 

By reason of circumstances I need not detail, the in- 
fluence of the Republican Party has been little felt south 
of Mason and Dixon's line. It is true that in Mary- 
jl land, West Virginia, Kentucky and Missouri the Repub- 
ll lican Party has been often in the majority, but in the 
other Southern States a contest has seemed hopeless. 
The time has come, in my judgment, when it is the duty 
of our party to make, an earnest effort to win to our 
support the many Southerners who think with us on 
every living national issue and have only been kept 
from our ranks by the ghost of the past. 

During the present administration the Republican 
Party has been called again to meet a great national 
need and to save the country from a growing danger. 
In the enormous industrial development and the accumu- 
lation of capital due to the combination in corporate 
form of the wealth of the country, there have arisen 
abuses which have threatened to undermine our whole 



284 THE ACHIEVEMENTS OF 



business fabric. The intense desire for gain, stimulated 
by the prospect of enormous profits, produced a reck- 
less spirit with reference to the methods of acquisition. 
Official investigations have disclosed a lack of business 
integrity on the part of some charged in a fiduciary 
capacity with the custody and management of great ac- 
cumulations of capital. Other official investigations 
showed the eagerness with which certain industrial com- 
binations were willing to use their patronage to induce 
or compel railroad companies to grant to them unjust 
and secret discriminations and rebates. The fact that 
the Interstate Commerce law was violated with perfect 
impunity became known to the public at large, and a 
conviction seized the people that there were many en- 
gaged in the management of corporate wealth who re- 
garded the statutes of their country as dead letters and 
themselves as a privileged class. Their corrupting influ- 
ence in politics and in respect of State and national 
legislation was naturally becoming greater and greater 
as their wealth grew and their associations spread. We 
were passing into a regime of an irresponsible plutoc- 
racy. During the last four years there has been a 
great moral awakening to this danger among the people 
and a popular demand that the lawbreakers — no matter 
how wealthy or how high or powerful their position — 
shall be made to suffer. Under the leadership of 
Theodore Roosevelt the Republican Party has not fal- 
tered in its determination to meet the requirements of 
this situation and to enact such legislation as may be 
necessary to bring to a close this period of illegitimate 
corporate immunity. 

At the instance of the President Congress was called 
upon to pass an amendment to the Interstate Commerce 
law known as the Rate Bill. What has been the effect 



THE REPUBLICAN PARTY 285 



of the Rate Bill? Everyone who knows anything about 
the management of railroads knows that there has been 
a revolution in respect to their obedience to the law. 
No longer are special privileges granted to the few — 
no longer are secret rebates extended to build up the 
monopoly of the trusts. The railroads are operating 
within the law, and the railroad directors and officers 
and stockholders ought to rise up and call blessed the 
men who are responsible for the passage of the Rate 
Bill. It may be that it has not reduced rates where it 
was expected. It may be that it has not furnished lo- 
cal relief at various points, as was hoped, but it has put 
the railroad business in this country on an honest basis, 
has eliminated from the operation of the railroads privi- 
lege and discrimination, and has enabled railroad men to 
look their fellows in the face without a consciousness 
that they are conducting a business in violation of law. 
It has put every railroad man in the country on his 
good behavior, and has created a complete change of 
attitude on the part of him and of his subordinates in 
respect to the statutes of his country. 

I am not now speaking of what may be accomplished, 
but what has been accomplished — not what the result of 
litigation under a new law has been or will be, but I 
am speaking of the result of the movement which found 
expression in the passage of the Rate law. 

Another policy proposed as a means of regulating 
railway rates is that of the improvement of our national 
waterways. Much money has been spent on sea harbors 
and the mouths of our rivers at the sea, but compara- 
tively little upon the internal waterways which nature 
has furnished to the country, and which form highways 
of travel from one border of it to the other. The call 
from the country for the development of a well- thought- 



286 THE ACHIEVEMENTS OF 

out plan for the improvement of all these waterways is 
so emphatic that it can not longer be resisted. That 
which has been done is largely piece work. What is 
needed now is the consistent development of this method 
of inter-communication, so that a certain amount a year 
can be assigned to the execution of the plan. The direct 
effect in the transportation of merchandise will doubt- 
less be most beneficial, while the indirect effect of regu- 
lating and reducing excessive railroad rates will be even 
of greater benefit. 

Other corporate abuses have been made manifest be- 
sides discrimination in rates. They consist in using the 
corporate form of investment to float bonds and stocks 
whose par value is far in excess of the real money value 
invested in the enterprise — a practice which, in addition 
to deceiving and defrauding the public, involves conse- 
quences with reference to reckless corporate manage- 
ment that are most demoralizing. Legislation looking 
to the restraint in this regard of interstate commerce 
railways has been recommended to, and doubtless will 
receive, the careful consideration and approval of the 
National Legislature. 

Under the stimulus of the revelations in respect to the 
illegal combinations of wealth for purposes of monopoly, 
prosecutions under the Interstate Commerce law and the 
anti-trust law by the Executive have been important 
and effective, and the whole weight of the Republican 
Administration has been thrown in favor of holding up 
to a strict compliance with the anti-trust law those who 
in times past had regarded it as of no effect. 

In the midst of this reform movement for the elimina- 
tion from our business methods of illegal monopoly and 
discrimination, our country has been visited by a severe 
financial panic. The panic was doubtless chiefly due to 



THE REPUBLICAN PARTY 287 



the exhausting of the free capital of the world by rea- 
son of the over-investment in enterprises that have not 
been as productive as expected. The enormous indus- 
trial expansion had at last tied up nearly all the world's 
capital which was available and the new investments had 
to halt. This result was world-wide. In addition to 
this general condition, the revelations concerning the 
management of a number of our large corporations 
affected the confidence of European investors in our 
whole business fabric. Then our monetary system is not 
of such an elastic nature as to meet the emergency pro- 
duced by sudden fright on the part of the holders of 
money, who withdraw it from business uses and hoard 
it against disaster. The result has been an industrial 
depression which we all hope and believe from the con- 
ditions prevailing will be of short duration. But those 
who have been made to feel the lash of public criticism 
by this moral awakening have been quick to seize upon 
and hold up the panic as a result of the measures taken 
or agitated to stamp out corporate abuses and illegality, 
and they have not been slow most unjustly to attack the 
Republican Administration, and Mr. Roosevelt at its 
head, as the responsible authors of this industrial de- 
pression. There are those who have been members of 
the Republican party who differ with Mr. Roosevelt 
in respect to the proper course to be taken in stamping 
out these abuses of corporate wealth. The great bulk of 
the Republican Party, however, stands solidly at his 
back in the work which he and the representatives of the 
party in Congress are doing. 

His recent message, urging the reenactment of the 
employers' liability act, which, because of bungling lan- 
guage, was declared unconstitutional, and asking addi- 
tional power for the interstate commerce commission, 



288 THE ACHIEVEMENTS OF 



has given rise in certain quarters to much criticism. I 
have read the message with care, and I am bound to say 
that the measures which he recommends to Congress, and 
the position he takes with respect to them, are all of a 
most conservative character. His position in favor of a 
general employers' liability act, which shall put the 
burden of the trade risk upon the employer, except 
where the injury is due solely to the negligence of the 
employee, is in the line of the best considered modern 
legislation of Europe and England. It will secure uni- 
formity and reasonableness of compensation for the 
family of the deceased or injured employee, instead of 
the inequalities and uncertainties of court trials, which 
under our present system give excessive damages to some 
and deny any recovery to others equally meritorious. 
The President stands forth stoutly for the power of the 
Courts and the efficacy of their orders, but properly 
calls attention to the abuses to which the reckless issu- 
ing of ex parte injunctions in labor cases has given rise. 

The message contains an answer to the charges made 
that the Administration is responsible for the industrial 
depression which has followed; and the sharpness and 
emphasis with which this unfounded attack is met, have 
heartened the great body of the people as by a bugle 
call to renewed support of the policies of this Adminis- 
tration. 

From beginning to the end the message shows his 
earnest desire to protect the honest business man and 
the honest laborer, and to secure to them the possibility 
of living under an equal administration of the law. He 
would not destroy or injure the stock of innocent hold- 
ers for value though it had its inception in the mach- 
inations of unprincipled promoters ; but he would make 
the law to prevent a recurrence of such methods, 



THE REPUBLICAN PARTY 289 



He takes the utmost pains to point out that railroads 
should be relieved from the restrictions of the anti-trust 
law, and that that law should be amended so as to give 
greater freedom for corporate action in combinations 
that are not hurtful to the public. No man can find 
within the four corners of the message anything to 
shake in the slightest the guaranties of life, liberty and 
property secured by the Constitution. The measures he 
recommends, and the positions that he takes, are in ac- 
cord with the conservative position of the Republican 
party which has ever looked upon the right of property 
as only less sacred than the right of liberty, and which 
has ever made the goal of all its efforts the equal pro- 
tection of the laws. 

Vigorous action and measures to stamp out existing 
abuses and effect reforms are necessary to vindicate 
society as at present constituted. Otherwise, we must 
yield to those who seek to introduce a new order of 
things on a socialistic basis. 

The Republican Party follows the Administration 
upon this social and moral reform — approves its atti- 
tude in favor of vested rights, of maintaining the power 
of the courts, of rendering more equal by legislation the 
basis of dealing between employer and employee, of 
strengthening the regulative power over railroads and 
other interstate corporations, and of prosecuting those 
lawbreakers who continue to defy public opinion. Roose- 
velt leads his party as Lincoln led his — as McKinley 
led his- — to meet the new issues presented? to arm our 
present civilization, and fit it with a bold front to re- 
sist the attacks of socialism, and to transmit to the com- 
ing generations unharmed the great institutions of 
civil liberty inherited from our fathers. 



RECENT CRITICISM OF THE FEDERAL 
JUDICIARY 



DELIVERED BEFORE THE AMERICAN BAR ASSOCIATION, 
DETROIT, MICHIGAN, AUGUST 28, 1895 

Within the last four years, the governors of five or 
more States have thought it proper in official messages 
to declare that the Federal courts have seized jurisdic- 
tion not rightly theirs, and have exercised it to the detri- 
ment of the Republic, and to urge their respective legis- 
latures to petition Congress for remedial action to pre- 
vent future usurpation. One legislature did present a 
memorial to Congress reciting the grievances of the 
people of its State against the Federal judiciary and 
asking a curtailment of the powers unlawfully assumed 
by them. 

The principal charge against the Federal courts, 
which an examination of these documents discloses, is 
that they have flagrantly usurped jurisdiction, first, to 
protect corporations and perpetuate their many abuses, 
and second, to oppress and destroy the power of or- 
ganized labor. 

These charges against the Federal judiciary have 
not been confined to messages from State governors. 
They also come from persons who, although not holding 
high office, have a standing before the bar which entitles 
them to respectful attention. Much of what is found 
in the official communications I have referred to con- 
cerning the treatment of corporations by the Federal 
courts has taken form from the articles and addresses 
of the editor of the American Law Review. This gen- 

290 



CRITICISM OF FEDERAL JUDICIARY 291 



tleman, well-known as an able and prominent law-text 
writer, has given much attention to the Federal decisions 
on corporate matters and has expressed his condemna- 
tion of many of them in language that has lacked noth- 
ing in freedom, emphasis or rhetorical figure. 

The one judicial system to which all the members of 
this Association bear the same relation is that of the 
United States, and when I was honored with an in- 
vitation to address them it at once occurred to me that 
I might properly ask their attention to a temperate 
discussion of the justice of these criticisms. 

I have since been oppressed with the thought that 
the theme might with more propriety be left to one 
having no official relation to the Federal courts, but 
circumstances have prevented any change from my 
original impulse. I can only hope that my recent ad- 
mission to the inferior ranks of the Federal judiciary 
and my humble position therein will prevent the sug- 
gestion that what is here to be said has anything in it 
either of a personal defense or of a quasi official 
character. 

The opportunity freely and publicly to criticise ju- 
dicial action is of vastly more importance to the body 
politic than the immunity of courts and judges from 
unjust aspersions and attack. Nothing tends more to 
render judges careful in their decisions and anxiously 
solicitous to do exact justice than the consciousness that 
every act of theirs is to be subjected to the intelligent 
scrutiny and candid criticism of their fellowmen. Such 
criticism is beneficial in proportion as it is fair, dis- 
passionate, discriminating and based on a knowledge of 
sound legal principles. The comments made by learned 
text writers and by the acute editors of the various law 
reviews upon judicial decisions are therefore highly 



292 



RECENT CRITICISM OF 



useful. Such critics constitute more or less impartial 
tribunals of professional opinion before which each 
judgment is made to stand or fall on its merits and thus 
exert a strong influence to secure uniformity of de- 
cision. But non-professional criticism is by no means 
without its uses, even if accompanied, as it often is, by a 
direct attack upon the judicial fairness and motives of 
the occupants of the bench; for if the law is but the 
essence of common sense, the protest of many average 
men may evidence a defect in a judicial conclusion 
though based on the nicest legal reasoning and pro- 
foundest learning. The two important elements of 
moral character in a judge are an earnest desire to reach 
a just conclusion and courage to enforce it. In so far 
as fear of public comment does not affect the courage of 
a judge but only spurs him on to search his conscience 
and to reach the result which approves itself to his in- 
most heart, such comment serves a useful purpose. 
There are few men, whether they are judges for life or 
for a shorter term, who do not prefer to earn and hold 
the respect of all, and who can not be reached and made 
to pause and deliberate by hostile public criticism?* In 
the case of judges having a life tenure, indeed, their 
very independence makes the right freely to comment on 
their decisions of greater importance because it is the 
only practical and available instrument in the hands of 
a free people to keep such judges alive to the reasonable 
demands of those they serve. 

On the other hand, the danger of destroying the 
proper influence of judicial decisions by creating un- 
founded prejudices against the courts, justifies and re- 
quires that unjust attacks shall be met and answered. 
Courts must ultimately rest their defense upon the in- 
herent strength of the opinions they deliver as the 



THE FEDERAL JUDICIARY 293 



ground for their conclusions and must trust to the calm 
and deliberate judgment of all the people as their best 
vindication. But the bar has much to do with the 
formation of that opinion and a discussion before them 
may sometimes contain suggestions which bear good 
fruit. 

Many persons whose good opinion is a high compli- 
ment regard the Federal judiciary with so much favor 
that they would deprecate a consideration of the criti- 
cisms already stated as likely to give an importance 
to them they do not deserve. I can not concur in this 
view. I believe that in large sections of this country 
there are many sincere and honest citizens who credit all 
that has been said against the Federal courts, and that 
it is of much importance that the reasons for the exist- 
ence of these criticisms and their injustice be pointed 
out. 

It is not unfair to those governors who are the chief 
accusers of the Federal judiciary to say that they 
knew they were not speaking as they did to unwilling 
ears. They were merely putting into language the 
hostile feeling of certain of their constituents toward 
the Federal courts, and but for such feeling the criti- 
cisms would hardly have been uttered. It will, there- 
fore, in a large measure account for such criticisms if 
we account for the popular sentiment they were made 
to satisfy. 

It will be my endeavor, therefore, first to show that 
much, if not all, of the present hostility to the Federal 
courts in certain parts of the country and among cer- 
tain groups of the people can be traced to causes over 
which those courts can exercise no control, and is neces- 
sarily due to the character of the jurisdiction with 
which they are vested and not to injustice in its exer- 



294 



RECENT CRITICISM OF 



cise ; and second, that the criticisms which such hostility 
has engendered are in themselves without foundation. 

The history of the Federal courts since their begin- 
ning is full of instances where the exercise of their 
jurisdiction has involved them in popular controversies 
and has brought down upon them the bitter assaults 
of those unfavorably affected by their decisions. Yet 
the event has justified their course and shown the in- 
justice of the attacks. 

The Federal Constitution was framed to create a na- 
tional government with limited powers and to mark the 
line between its jurisdiction on the one hand and that of 
the States and the people on the other. By virtue of its 
eighth article the State courts and a fortiori the Federal 
courts were vested with the power and charged with the 
duty in judicial cases arising before them of ignoring 
State laws in conflict with the Federal Constitution. 
By necessary implication their obedience to the funda- 
mental law also required them to ignore acts of Congress 
which were so plainly in violation of the Constitution 
that even the necessary and high respect due to the 
construction by Congress of its own powers could not 
give such acts the force of law. 

The Federal judiciary at once became the arbiter in 
the first great political controversy of the United 
States, and one which is continually reappearing in 
various forms. The general language of the Constitu- 
tion required construction to apply it to judicial cases 
arising in the organization and maintenance of the 
government. The two parties which had engaged in 
heated controversy over the adoption of the covenant at 
all continued it over its narrow or broad interpretation. 
The Supreme Court in the beginning was made up 
largely of men whose predilection was for a liberal con- 



THE FEDERAL JUDICIARY 295 



struction and who believed thoroughly in the national 
idea. This was soon manifest in their decisions, which 
called down upon the court the anathemas of the strict 
constructionists, whose great effort it thereupon became 
to weaken the power of the judiciary. It was attempted 
to control their independence by making very wide the 
grounds for impeachment. The great Chief Justice 
was constantly threatened with this fate by partisans 
and the attacks upon his alleged usurpations were fre- 
quent and fierce. Jefferson's severe words concerning 
the Federal judiciary, now so often quoted by their 
latter-day critics, were written in 1820 and were pro- 
voked by the decision in Cohens vs. Virginia, reaffirm- 
ing the power of the Supreme Court of the United 
States to reverse the decision of the Supreme Court of a 
State on the validity of a State law under the Federal 
Constitution. It is not surprising that he who had in- 
spired the Kentucky resolutions of 1798 declaring the 
right of a State to decline compliance with a Federal 
law deemed by it to be in conflict with the fundamental 
compact, should regard the Federalist Supreme Court 
which itself asserted the right finally to decide such a 
question, as " a thief of jurisdiction." 

Upon political questions, and such are those arising 
in the construction of a political charter, there always 
have been and always will be differences of opinion. 
There is frequently no absolute standard, even a century 
after, in deciding the abstract right of them. We must 
be content to abide the result reached by the verdict and 
acquiescence of the people whose interests were involved. 
Before this tribunal, the position of John Marshall and 
his associates on the Supreme Bench has been vindicated 
and the criticisms of Thomas Jefferson have been re- 
futed. 



296 RECENT CRITICISM OF 



Beginning then as arbiters in a political conflict and 
wielding similar powers until to-day, the Federal ju- 
diciary have never enjoyed immunity from hostile at- 
tack upon their conduct or their motives. The great 
controversy over the fugitive slave law needs no recount- 
ing here. In the eyes of the abolitionists the Federal 
courts and their marshals were instruments of hell in en- 
forcing the law, and yet there could not be the slightest 
doubt that such a jurisdiction was plainly within the 
Constitution. 

The change of feeling toward the Federal courts be- 
cause of the change in their jurisdiction with respect to 
the negro race affords an apt illustration of how mere 
jurisdiction may affect the popular feeling toward a 
court. Before the war the Southern people had not 
looked with disfavor upon courts which did so much to 
preserve their property, while at the same time the 
abolitionists regarded them with aversion. After the 
war, when, for the protection of the negro in his elec- 
toral and civil rights, the election and civil rights bills 
were passed and their enforcement was given to the 
Federal courts, they became at the same time the ob- 
jects of hatred and condemnation at the South and the 
great reliance of those who had been abolitionists at the 
North. Now that both parties have wisely decided to 
let the election problem work itself out and to await 
the local solution which the results of fraud and violence 
in elections will compel, the feeling of hostility at the 
South against the Federal judiciary has greatly abated. 

This is but one of many historical instances showing 
how the Federal courts may be subjected to the most 
severe criticism without just grounds merely because of 
the character of their jurisdiction. 

I come now to review the reasons why their mere 



THE FEDERAL JUDICIARY 297 



jurisdiction has created a deep impression in many 
parts of the country that the evils due to corporations 
are fostered by them. 

The last two generations have witnessed a marvelous 
material development. It has been effected by the or- 
ganization and enforced cooperation of simple elements 
that for a long time previous had been separately used. 
The organization of powerful machines or of delicate 
devices, by which the producing power of one man was 
increased fifty or one hundred fold, was, however, not 
the only step in this great progress. The aim of all 
material civilization in its hard contest with nature was 
the reduction of the cost of production, because thereby 
each man's day's work netted him more of the com- 
forts of life. Within the limits of efficient administra- 
tion the larger the amount to be produced at one time 
and under one management, the less the expense per 
unit. Therefore, the aggregation of capital, the other 
essential element with labor in producing anything, be- 
came an obvious means of securing economy in the 
manufacture of everything. Corporations had long 
been known as convenient commercial instruments for 
securing and wielding efficiently such aggregations of 
capital. Charters were at first conferred by special act 
upon particular individuals and with varying powers, 
but so great became the advantage of incorporation, 
with the facility afforded for managing great enter- 
prises and the limitation of the liability of investors, 
that it was deemed wise in this country, in order to pre- 
vent favoritism, to create corporations by general laws 
and thus to afford to all who wished it the opportunity 
of assuming a corporate character in accordance there- 
with. The result was a great increase in the number 
of the corporations and the assumption of the corpo- 



298 



RECENT CRITICISM OF 



rate form by seven-eighths of the active capital of the 
country. The great saving in the cost of production 
brought about by mechanical inventions and the or- 
ganization of capital worked incalculable benefit to the 
public, but the necessary price of it under our system 
of free right of contract and inviolable rights of pri- 
vate property was a division of the profit between those 
who were to consume the product and those whose minds 
conceived and whose hands executed the work of produc- 
tion. The total wealth of the whole country was thus 
enormously increased, but of the increase more was 
necessarily accumulated in some hands than others. In 
the general prosperity caused by the revolution in 
methods of production, captains of industry amassed 
fabulous fortunes, and the aggregations of capital under 
corporate management became so great as to stagger 
the imagination. In the mad rush for money which 
previous successes had stimulated, it is not to be won- 
dered at that some of the accumulated wealth was cor- 
ruptly used to secure undue business advantages from 
legislative and executive sources and that many of the 
political agencies of the people became tainted. The 
impersonal character of corporations afforded a free- 
dom from that restraint in the use of money for political 
corruption which is often present when the would-be 
briber is an individual. Men of good repute, with com- 
placence and intentional ignorance, acquiesced in the 
use of corporate funds to buy legislators and council- 
men in the corporate interest, when they would not wish 
or dare to adopt such methods in their individual busi- 
ness. The enormous increase in corporate wealth fur- 
nished the means of corruption, and the prospect of ill- 
gotten gains attracted the dishonest trickster into poli- 
tics and debauched the weak, while the honest and cour- 



THE FEDERAL JUDICIARY 299 



ageous were often driven into private life. The genie 
of corruption in politics which the corporations called 
up has lived to plague them, and although many great 
companies have secured all they wish from legislative 
bodies, they are regarded by the political blackmailers 
as fair game and the corruption fund is still maintained 
to prevent oppression. The people not unjustly have 
charged these public evils to the management of cor- 
porations. 

Another evil has been the injustice done to the real 
owners of corporate property by the reckless and dis- 
honest management of its nominal owners. The great 
liberality of the general laws for the formation of cor- * 
porations and the entire failure to exercise any strin- 
gent visitorial powers over them have enabled the active 
promoters and managers of large enterprises carried 
on at a distance from the homes of the real owners, to 
increase the corporate indebtedness and capital stock so 
far beyond any fair valuation of their property as to 
put the entire control of it in the hands of the holders 
of worthless stock who have nothing at stake in the 
corporate success. 

The real owners, the bondholders, are at the mercy 
of this irresponsible management till insolvency comes. 
The reckless business methods which such an irrespon- 
sibility and lack of supervision invite create an un- 
healthy and feverish competition in every market, 
wholly unrestrained by the natural caution which the 
real owner of a business must feel. The concern is 
kept going with no hope of legitimate profit, but simply 
to pay large salaries or to favor unduly some other en- 
terprise in which the managers have a real interest. 

Another reason for popular distrust of corporate 
methods is the use by corporations of great amounts of 



300 



RECENT CRITICISM OF 



capital to monopolize and control particular industries. 
It is my sincere belief that no such control or monopoly 
can be maintained permanently unless it is buttressed by 
positive legislation giving an undue advantage over the 
public and competitors. Of course, by close business 
methods and by improving all the economical advantages 
which the manufacture of a commodity on an enormous 
scale affords, the cost of production may be so reduced 
as to discourage competition on a smaller scale, but un- 
less the fear of it performs the same useful office for the 
benefit of the public by continuing the lowest profitable 
prices, actual competition will certainly appear. What- 
ever the fate such trusts may ultimately have, it has 
often happened that in their formation and early his- 
tory the plan adopted has been the forced buying out 
of every competitor or his ruin by underselling him at 
heavy loss, so as to put the public and the market for a 
time at least at the mercy of one greedy corporate 
concern. Such methods and such a result naturally 
fill the people with anxious fears and a hostile feeling 
toward aggregations of corporate wealth. 

In spite of these well-known evils nothing can be 
clearer to a calm, intelligent thinker than that under 
conditions of modern society, corporations are indis- 
pensable both to the further material progress of this 
country and to the maintenance of that we have en- 
joyed. The evils must be remedied, but not by destroy- 
ing one of the greatest instruments for good that social 
man has devised. Nevertheless, so strong has the hos- 
tility to corporations become, especially in certain of 
the southern and western States where the agricultural 
community is large, life is hard and wealth is rare, that 
any plan which can be contrived to diminish the 
property of corporations or to cripple their efficiency 



THE FEDERAL JUDICIARY 301 



seems to meet with favor. The feeling is especially di- 
rected against the railway corporations, although with- 
out their aid and presence these very communities would 
be helpless and poor indeed. 

The last decade in Europe has been prolific of doc- 
trines and theories for the amelioration of the human 
race by the abolition of private property and private 
capital by the vesting of all the means of production in 
the government, for the benefit of all the people, and 
by the distribution of the product according to fixed 
standards of merit. While socialism, as such, has not 
obtained much of a foothold in this country, even in 
those sections already referred to, schemes which are 
necessarily socialistic in their nature are accepted 
planks in the platform of a large political party. The 
underlying principle of such schemes is that it is the 
duty of the government to equalize the inequalities which 
the rights of free contract and private property have 
brought about, and by enormous outlay, derived as far as 
possible from the rich, to afford occupation and suste- 
nance to the poor. However disguised such plans of 
social and governmental reform are, they find their sup- 
port in the willingness of their advocates to transfer 
without any compensation from one who has acquired, 
a large part of his acquisition to those who have been 
less prudent, energetic and fortunate. This, of course, 
involves confiscation and the destruction of the principle 
of private property. 

Under the Fourteenth Amendment the question 
whether legislation and State action deprive any person 
of his property without due process of law has become 
a Federal one, and by the Act of 1875 it is cognizable 
by the Circuit Courts of the United States. 

The prejudices above adverted to have led to much 



302 



RECENT CRITICISM OF 



legislation hostile to corporations both resident and non- 
resident. It takes the forms of discriminating taxation, 
of the regulation of rates to be charged by those com- 
panies engaged in quasi public business and sometimes 
of the direct deprivation of vested rights. In all such 
cases resort is at once had to the inferior Federal courts 
by the corporations injuriously affected, to test the 
validity of the State's action, and it not infrequently 
happens that it becomes the duty of such courts to de- 
clare void the legislation involved and to enjoin State 
officers from seizing or injuring the property of cor- 
porations under its provisions. Such a decision in a cor- 
poration-hating community at once tends to mark the 
Federal courts as friends and protectors of corpora- 
tions. 

The repeated efforts of different State legislatures to 
impose , restrictions upon interstate commerce to secure 
some apparent advantage to their own constituents, evi- 
dence the profound wisdom of the framers of the Con- 
stitution in vesting complete control thereof in the na- 
tional government, but the tribunals whose jurisdiction 
is constantly invoked judicially to declare void all such 
legislation do not for the time commend themselves to 
the favor either of those who urged its passage or of 
those who were to profit by its operation, and the fact 
that the complainant in such litigation is frequently a 
railroad or transportation company only confirms the 
view of the undue favor of these courts to such litigants. 

The jurisdiction of the Federal judiciary does not end 
with the enforcement of national laws in the interest of 
the whole country against the temporary interest of a 
part. They are also required to administer justice be- 
tween the citizens of different States. It goes without 
saying that this judicial power was given to prevent the 



THE FEDERAL JUDICIARY SOS 



possibility of injustice from local prejudice and not be- 
cause in every case it was supposed to exist. The en- 
tire jurisdiction rests on the exceptional instances, for 
in a great majority of cases the same results would cer- 
tainly be reached in the courts of the State as in the 
Federal courts. But in those courts or States where 
there is real danger from prejudice against a stranger, 
the same cause which is likely to obstruct justice for 
the foreign suitor creates a local feeling of resentment 
against the tribunal established to defeat its effect. 

The capital invested in great enterprises in the South 
and West is owned in the East or abroad, and the cor- 
porations which use it are therefore frequently or- 
ganized in a different State from that in which the in- 
vestment is made. Such companies all carry their liti- 
gation into the Federal courts on the ground of diverse 
citizenship with the opposing party, and, in view of 
the deep-seated prejudice entertained against them by 
the local population, it is not surprising that they do. 
That in most, if not in all, cases the feeling that 
prompts this avoidance of the State courts does great 
injustice to the State judiciary is undoubtedly true. In 
jury trials, however, the fear of injustice from local 
prejudice is certainly sometimes justified. In these 
same States where the narrow provincial spirit is strong 
and local prejudices exist, there is deep fear of the abuse 
of judicial power and the legislation of the State is 
directed to minimizing the influence and control of the 
judge over the action and deliberation of the jury. The 
extent to which this is carried was clearly set forth in an 
interesting address delivered before this Association by 
Mr. Justice Brown some years ago. The slightest cir- 
cumstance, although furnishing but a scintilla of evi- 
dence to support the contention of either party, re- 



304 RECENT CRITICISM OF 



quires the submission of the case to the jury. The 
office of a judge is reduced to that of a mere moderator 
of the trial. He is only permitted to lay down a few 
general principles of law in advance of the argument, 
while the application of them to the facts of the case 
and conflicting evidence is really committed to the zeal 
of contending counsel. The tendency of such procedure 
is to leave to the unrestrained impulses of the jury the 
settlement of all the issues of the case. Though the in- 
justice likely to result to corporations from this pro- 
cedure is manifest, the people of a locality where local 
prejudice exists have come to think that they have a 
vested right to the chances of success which it gives 
them in a suit against such opponents. When, there- 
fore, in controversies with corporations of other States, 
they are carried before a court in which the jury are 
not their friends and neighbors and in which the power 
is given to the judge to direct a verdict when the evi- 
dence for either party is so slight that a contrary ver- 
dict must be set aside, to comment on the evidence, to 
apply the law thereto, and to make plain, if need be, 
what the legal sophistries of counsel and their inac- 
curate statements of the evidence may have obscured, 
they feel that they are in a tribunal which they should 
avoid and which the corporation should naturally seek. 
The constant struggle of most corporations to avoid 
State tribunals in the sections of the country referred 
to, and to secure a Federal forum, even though it is 
followed by only limited success in the result of the 
litigation, is chiefly the cause for the popular impres- 
sion in those States that the Federal courts are the 
friends of corporations and protectors of their abuses. 

Those abuses, however, really find their chief cause in 
political corruption, which it is wholly beyond the power 



THE FEDERAL JUDICIARY 305 



of the Federal courts to prevent or eradicate. Too fre- 
quently the popular impulse is to remedy or punish the 
evil by giving judgment against the great corporations 
in every case, no matter what the particular issues or 
facts are, on the ground that the corporation has prob- 
ably increased its capital or attained its success by cor- 
rupt methods. It is hardly necessary to point out that 
this mode of punishment by forfeiture and chance dis- 
tribution can not be countenanced in a court of justice, 
however meritorious the cause of complaint upon which 
it is founded. 

Corporate corruption can not be directly punished 
in the Federal courts, because the bribery of which many 
corporations are guilty is most difficult of legal proof, 
and crimes of this character are usually committed 
against the State, so that Federal courts have no cog- 
nizance of them. It has been wisely settled by the ad- 
judication of all courts, State and Federal, that the 
evils resulting from vesting in courts the power to set 
aside otherwise lawful acts of the legislature for al- 
leged corruption in their passage, would exceed even 
the wrong done by such legislation, because of the un- 
certainty it would give to the binding effect of all laws 
and the overwhelming influence such power to inquire 
into legislative motives would give the judicial branch of 
the government in respect of all legislative action. 

The abuses which too liberal charters and insufficient 
visitorial power permit, are either for the State legis- 
latures or for the State executive and courts, by quo 
warranto, to correct and remedy. State laws which 
should forbid the issue of stock or the issue of bonds 
by any corporation until after an examination by a 
State board of supervision into the affairs of the com- 
pany and a certificate that the assets justify it, would 



S06 



RECENT CRITICISM OF 



do much in this direction. The Federal courts can do 
nothing to prevent such abuses, and their action is not 
usually invoked until the evil is done and only a bank- 
rupt estate is left to administer. 

The combinations known as trusts are now before the 
State courts, and I have no doubt from their decisions 
that legislation which experience will suggest, both by 
way of supervision over corporations and by criminal 
laws, will suppress much of their evil methods. It is 
settled and rightly settled, I submit, that the national 
government can do nothing in this direction, except 
where such trusts are for the purpose of directly con- 
trolling interstate commerce. 

The main public evil of corporate growth, the corrup- 
tion of politics, must be reformed by the people and 
not by the courts. Courts are but conservators ; they 
can not effect great social or political changes. Cor- 
porations there must be if we would progress ; accumu- 
lation of wealth there will be if private property con- 
tinues the keystone of our society; the temptation to 
use money to corrupt legislatures and other political 
agencies will remain potent as long as undue privilege 
for corporations can be thus secured. The only real 
remedy is in the purification of the politics of the 
country and the selection of incorruptible public serv- 
ants. Dark as the prospect sometimes seems for such a 
change, we must not and need not despair. Public 
opinion is sound, the great heart of the American people 
is honest, and slowly but surely the light is breaking 
in on them. The adoption of civil service reform in 
Federal, State and municipal government is as certain 
to come as the nation is to live, and with its complete 
establishment, the end of those indispensable assistants 
of successful political corruption, the machine and its 



THE FEDERAL JUDICIARY 307 



boss, will cease to be. The mad rush for wealth, the 
fevered condition of business and the opportunity for 
making sudden fortunes have taken the attention of the 
more intelligent people from politics and made them 
blind or callous to political abuses. With their greater 
ability to see and appreciate the dangers of the republic, 
their share of the blame for present conditions is 
greater. But there are many signs of a quickened pub- 
lic conscience and of a willingness on the part of the 
intelligent and the pure to interest themselves in politics 
for their country's good. 

The present successful use of corrupt methods by 
corporations is directly due to the neglect of the people 
to exercise the eternal watchfulness which is the price 
of pure government ; but those whose interest it is to 
secure popular support and who are willing to secure it 
by appeals to prejudice do not tell the people unpleas- 
ant truths and are glad to find a scapegoat for the 
people's sins in the Federal judiciary. It well rounds a 
rhetorical period to point to the Federal judiciary as an 
irresponsible and irremovable body, wholly out of touch 
with the people and conniving at corporate abuses. 

To an impartial observer it must seem remarkable 
that judges should conceive a love for soulless corpora- 
tions and unduly favor them. Living as most of these 
judges do on their salaries and deriving no profit from 
corporate investments, they would seem to find little in 
their lives to blind them to the injustice of any claim or 
defense which a wealthy corporation may make. 

If it were conceded that greed of power is an in- 
centive so strong that Federal judges have yielded to it 
and have extended their jurisdiction over corporations 
beyond the lines marked by the Constitution and the 
laws, this is far from establishing that justice has not 



308 



RECENT CRITICISM OF 



been meted out to corporate suitors with impartial hand. 
The fact is that when we come to examine in detail the 
charges against the Federal courts, the burden of them 
is that they have assumed jurisdiction over corporate 
litigation without constitutional and legal right, and not 
that, in the hearing on the merits, corporations have 
been unduly favored. The latter is always assumed as a 
granted premise when the former is deemed to be es- 
tablished. 

Having pointed out some of the reasons why the 
jurisdiction of the Federal courts in respect to corpora- 
tions, be it exercised never so impartially, must under 
existing conditions arouse deep prejudice against them, 
and call forth severe assaults upon their conduct and 
motives, I come now to examine more in detail the 
charges which have been made by those who attempt 
specifications. 

The first is that the Supreme Court in holding, in the 
Dartmouth College case, the legislative charter of a 
corporation to be a contract, the repeal of which was 
the impairment of its obligation and was inhibited by 
the Federal constitution, committed a fundamental er- 
ror, induced thereto by greed of jurisdiction, and thus 
furnished to corporations the means of maintaining and 
enjoying corruptly purchased privileges. I do not 
propose to discuss this much-criticised case, because it 
was decided in 1820, and has now nothing but an his- 
torical interest; for no charter has been granted for 
years which does not contain a clause permitting its 
repeal or amendment, and a court could hardly give a 
wider scope to such a reservation clause in favor of the 
State's power than that which the Supreme Court of the 
United States gave in the Greenwood Freight Company 
case. With reference to the accusation that it was 



THE FEDERAL JUDICIARY 309 



greed of jurisdiction which induced the court to hold 
that the revocation of a grant by a State was the im- 
pairment of a contract and so within the Federal con- 
stitution, it should be said that the people of the 
United States, instead of condemning this assumption 
of jurisdiction, have by subsequent amendment expressly 
extended the Federal judicial power to the cognizance of 
State aggression upon all vested rights whether resting 
in grant, contract or otherwise. 

And this suggests the charge against the Supreme 
Court that it improperly seized additional corporate 
jurisdiction in its holding that the Fourteenth Amend- 
ment forbidding a State to deprive any person of life, 
liberty or property without due process of law protects 
the property of corporations as well as that of natural 
persons. It is difficult to see how any other result 
could have been reached. For, even if artificial persons 
are not referred to in the amendment, natural persons 
necessarily have vested rights in the property of cor- 
porations. It is said that the construction should have 
been limited so as to exclude corporations because the 
moving cause was only to give national protection to a 
newly freed race. In the light of the general language 
of the amendment, this would have been a narrow con- 
struction indeed, and one which nothing could have 
justified except the conviction, now firmly held and de- 
clared in some quarters, that Federal jurisdiction to 
preserve any rights, even those declared in Magna 
Charta, is an unmitigated evil, to be avoided by inter- 
pretation however strained. 

And yet the Supreme Court is attacked with invective 
and epithet by the same critics for refusing to hold 
in the Sugar Trust case that the power to regulate in- 
terstate commerce includes within it the power to in- 



310 RECENT CRITICISM OF 



hibit the purchase by one company of substantially all 
the plants for refining sugar in this country with the 
purpose of controlling its sugar markets. To extend 
the Federal regulation of interstate commerce to that 
of the purchase of the means of producing a commodity 
which, when produced, is to be the subject of commerce 
both State and interstate, requires a construction of the 
interstate commerce clause so broad that, if it had 
been accepted, it would have been difficult to fix a limit 
beyond which Congress might not go in the control of 
mercantile business and manufacturing in every com- 
munity. It would have seemed to give some ground for 
the charge so often made, that, through Federal ju- 
dicial decisions, rights of the States are being absorbed 
in the national government. 

As I have already said, the burden of the specifica- 
tions against the Federal judiciary, is not that they 
unduly favor corporations in the hearing of cases, but 
that they have improperly given corporations oppor- 
tunities to avoid the State courts by resorting to the 
Federal courts. Hence the decisions of the Supreme 
Court, by which corporations organized in one State and 
suing or being sued in another are permitted to select 
the Federal courts as a forum, have been the subject of 
the severest animadversion, and the judges rendering 
the decisions are charged with having been consciously 
guilty of flagrant usurpation and with intentional vio- 
lation of the law and the Constitution. When corpora- 
tions first appeared in the Federal courts, it was held 
that a corporation was not a citizen within the meaning 
of the judiciar}' act or the Constitution, and that Fed- 
eral jurisdiction asserted on the ground of diverse citi- 
zenship in a cause to which a corporation was a party, 
must depend on the citizenship of the stockholders or 



THE FEDERAL JUDICIARY 311 



members of the corporation. As it had also been ruled 
that the words of the judiciary act giving circuit courts 
jurisdiction in every suit between a citizen of the State 
where it was brought, and the citizen of another State, 
only included suits where all the parties on one side 
were of different citizenship from that of all of those 
on the other, the result was that no corporation could 
resort to a Federal court unless all its stockholders were 
citizens of another State from that in which the suit 
was brought, and the ownership of one share by a 
resident of the same State with that of the opposing 
partly ousted the jurisdiction. And this the Supreme 
Court held until 1844. In that year the question arose 
again, and the court held that, for purposes of 
Federal jurisdiction, a corporation was a citizen 
of the State which created it, and soon thereafter 
laid down the doctrine, always followed since, that the 
members of a corporation are to be conclusively pre- 
sumed to be citizens of the State of its creation. This 
conclusive presumption was a fiction, adopted, as Mr. 
Justice Bradley has explained, to avoid the difficulty 
and injustice caused by the frequent appearance in 
such cases of a single resident stockholder. It was in 
effect a changed construction of the judiciary act for 
reasons which had not forcibly presented themselves to 
the court when the question first arose. It was certainly 
true that when corporations, organized in other states 
than that where suit was brought, appeared in litiga- 
tion, they represented members, a great majority of 
whom were either citizens of other States or aliens. If 
any local prejudice was likely to have effect against a 
non-resident natural person, it certainly would have ef- 
fect against a corporation from another State, and 
the ownership of a few shares of its stock by a resi- 



312 RECENT CRITICISM OF 



dent would not obviate it. The result reached by the de- 
cisions was quite within the constitutional grant of 
Federal judicial power, for that covers all controversies 
between citizens of different States, and it is immaterial 
whether in such controversies are also involved, on both 
sides, citizens of the same State. There was such a real 
difference for the practical purposes of a trial and the 
bearing of local prejudice upon it between a suit by or 
against a foreign corporate body with one or more resi- 
dent stockholders, whose identity was lost in that of the 
corporate party litigant, and a suit by or against 
parties to the record who were natural persons, some of 
them residents and others non-residents, that the ex- 
ception made in respect to corporations in the estab- 
lished construction of the judiciary act would seem 
sound and reasonable. 

The holding that a foreign or non-resident corpora- 
tion must be excluded from resort to a Federal forum be- 
cause it had one or more resident stockholders would 
practically deprive the owners of nearly all foreign 
capital to be invested in the newer States of the Union 
of any opportunity to sue or defend in the Federal 
courts, because, in the nature of things, their capital 
must assume a corporate form, and in companies with 
thousands of shares of capital stock transferable with- 
out restriction, a share or two, at least, would be sure 
to find its way into the possession of a resident owner. 
And yet the reason for the constitutional provision ap- 
plied more strongly to such corporate investments than 
to those of non-resident natural persons. 

The ruling was directly in the interest of the new 
States who were thirsting for foreign capital, because 
it removed one of the hindrances to its coming. It was, 
therefore, exactly in accord with the intention of the 



THE FEDERAL JUDICIARY 



Constitution. It gives but a contracted view of the 
purpose of the framers of that instrument in provid- 
ing a tribunal between citizens of different States, which 
was equally related to both, to regard it solely from 
the standpoint of the non-resident and as intended only 
to secure a benefit for him. It is crediting them with 
a much more statesmanlike object to say, that while the 
provision was, of course, intended to avoid actual in- 
justice from local prejudice, its more especial purpose 
was to allay the fears of such injustice in the minds of 
those whose material aid was necessary in developing 
the commercial intercourse between the States, and thus 
to induce such intercourse and the investment of capital 
owned by citizens of one State in another. In this 
light, it is only one of several provisions of the Con- 
stitution intended to prevent unnecessary and preju- 
diced restraints upon interstate commerce, and it con- 
fers more benefit upon those against whose prejudice 
it is intended as a shield than upon those whose interests 
are directly protected. 

The decisions under discussion were made by the Su- 
preme Court in the days of Chief Justice Taney, and 
with his concurrence, at a time when its members are 
now thought to have been inclined toward a narrower 
construction of the Constitution and Federal jurisdic- 
tion and powers than their predecessors. 

Moreover, the people of the United States for fifty 
years have acquiesced in this holding. In the last half 
century, it has always been within the power of Con- 
gress by two lines of legislation to reverse it, and, al- 
though during that period the party of strict con- 
struction and State's rights was for years in control of 
Congress and the judiciary act was four times sub- 
stantially amended, the decisions remain the law of the 



314 RECENT CRITICISM OF 



land. When it requires a constitutional amendment to 
correct or restrain an unwarranted assumption of power 
by a court, the machinery for securing it is so cumber- 
some that the failure by this means to restrain the 
court is not a conclusive argument in favor of the 
people's acquiescence in the court's assertion of juris- 
diction. But where, as in the present case, the issue 
was merely one of construing a statute, the failure of 
Congress for half a century to amend or overrule the 
construction given is as strong an argument as can be 
adduced to justify the action of the court, and would 
in this case seem to be the best possible refutation of 
the severe charge that the judges, who made these de- 
cisions, were guilty of flagrant and intentional usurpa- 
tion. 

If it is true that citizens of one State organize 
corporations under the laws of another State to do busi- 
ness in the former State, and thereby carry controver- 
sies with their fellow-citizens into the Federal courts, 
this is an abuse which should be remedied by Congress, 
as other frauds upon the jurisdiction have been pro- 
vided against. 

The Federal courts have also been severely arraigned 
for undue amplification of their powers in the matter of 
receivers of railroad companies, due as it is charged to 
their leaning toward such corporations and a desire to 
protect them. This count of the general indictment 
against the Federal judiciary is more fully and elabo- 
rately treated in a memorial presented to Congress by 
the Legislature of South Carolina, than anywhere else. 
The occasion for the protest was the commitments for 
contempt by the Circuit Court of the United States 
sitting in South Carolina of certain State officers. In 
one case, the contemnors were taxing officers, who, 



THE FEDERAL JUDICIARY 315 



though they knew the property to be in the hands of the 
receiver of the Federal court, without any applica- 
tion to the court, seized it for taxes. In the other case, 
a constable without search warrant broke into the ware- 
house of a railroad in the hands of the court's receiver 
and seized a cask of liquor on the ground that it had 
been transported into the State contrary to the pro- 
visions of the State dispensary law. The cask had been 
imported before the dispensary law went into effect and 
had been held by the receiver because the whereabouts 
of the consignee could not be discovered. The circum- 
stances in each of these cases rather indicate a desire 
on the part of the State authorities to seek a conflict 
with the Federal court than an aggressive and domi- 
neering spirit in the latter. When the State authorities 
in a decent and orderly way subsequently applied to the 
court for an order upon the receiver to pay the taxes, 
the objections of the receiver were heard and overruled 
and an order made upon him to pay. 

The deep spirit of distrust of the Federal courts in 
which the memorial is written may be inferred from one 
of its concluding sentences, in which the Federal courts 
of equity are referred to as " having been degraded to 
their present position of being feared by the patriotic 
and avoided by the honest." We are permitted to con- 
jecture that the memorialists were not wholly unbiased 
in discussing the decisions of the Federal courts and 
their integrity and standing, when we read the state- 
ment in the inaugural address of the present Governor 
of the State, who was one of the signers of the memorial, 
that he and the men to whom he was speaking in this 
year of grace, 1895, were " South Carolinians by birth 
and choice, Southerners on principle and Americans by 
force of circumstances." 



316 RECENT CRITICISM OF 



The main purpose of the memorial was to show that 
the practice of Federal courts of equity in appointing 
receivers to operate railroads is a usurpation of au- 
thority wholly without warrant in the English High 
Court of Chancery, by the procedure in which the scope 
of equitable remedies in the Federal courts is usually 
governed. To establish this, the memorialists relied 
chiefly on the judgment of Lord Cairns in the Court of 
Chancery Appeals in the case of Gardner vs. The Lon- 
don, Chatham & Dover Company, in which the order of 
the Vice-Chancellor appointing a manager of the de- 
fendant railway on the application of a mortgagee of 
the railway tolls was reversed. The judgment was placed 
upon two grounds, first, that the mortgage gave no 
right of sale and liquidation, so that the order was 
really for a permanent management of a going business, 
while the practice in courts of equity justified the ap- 
pointment of receivers only until a sale and liquidation ; 
and, second, that by the charter of the company the 
franchises were personal and non-assignable, and could 
not be exercised by a receiver. The first reason has 
little or no application to the vast majority of cases 
in which railroad receivers have been appointed in this 
country, for generally the remedy sought has been a sale 
and liquidation, and the receiver has thus been appointed 
to serve only until the sale. The second ground of 
the judgment does not relate to the competency of a 
court of equity to manage a railroad or other going 
business through an agent, pendente lite, but only to 
the assignability of franchises, and it furnishes as little 
support as the first ground to the claims of the 
memorial. The power to mortgage conferred by statute 
on railway companies in this country usually contains 
express authority to mortgage both the railroad and the 



THE FEDERAL JUDICIARY S17 



franchises to operate it. The necessary implications 
from this are the right to sell the franchises with the 
road at a foreclosure sale, and the power of the court in 
which foreclosure proceedings are had, to preserve the 
property with its assignable franchises, by temporary 
custody and operation of the road under such fran- 
chises pending the sale. 

By reference to Lord Justice Baggallay's judgment, 
In re The Manchester & Milford Ry. Co., 14 Ch. D., 
657, it appears that the result in Gardner's case was a 
surprise to the profession, and reversed the practice of 
appointing managers in such cases which had been in 
vogue in the chancery courts of England for ten years 
previous, and which had had the sanction of as great 
a chancery lawyer as Lord Hatherly. Moreover, no 
sooner was the decision announced in the Gardner case 
than Parliament passed an act expressly authorizing 
the appointment of railroad managers by the court of 
chancery, showing that, in the opinion of Parliament, 
jurisdiction to manage railroads, pending litigation 
over them, by officers of the court was a power that 
courts of equity should have, if they did not already 
have it. 

The charge of usurpation in the appointment of re- 
ceivers becomes still less maintainable when we consider 
the history of receiverships in this country. Gardner's 
case was decided in 1866. As much as ten years before 
this, the Supreme Court of the United States in Coving- 
ton Drawbridge Co. vs. Shepherd, 21 How., 112, had 
referred to the practice in the English court of chancery 
to order a receiver to be appointed to manage railways 
and other corporate property, to take the proceeds of 
the franchises and to apply them to pay the creditors 
filing the bill, and had approved and adopted it in the 



318 



RECENT CRITICISM OF 



case of a bridge company. Thereafter receivers were 
appointed for railways and it had become a settled prac- 
tice not only in the Federal courts but in State courts 
when Gardner's case was decided. Even if that case 
can not be reconciled with the practice of appointing re- 
ceivers under the conditions existing in this country, as 
I have attempted to show it can be, there would still 
seem to be no binding or jurisdictional obligation on 
courts of the United States to reverse their settled pro- 
cedure of ten years' standing based on English prec- 
edent, to accord with a new and unexpected ruling in 
the English courts, and one the effect of which was 
immediately done away with by an act of Parliament 
restoring the old practice. 

The appointment of receivers to operate railroads 
pending suits in foreclosure and creditors' bills, instead 
of being an abuse of authority by the Federal courts, 
was a most commendable use of an ordinary equitable 
means of preserving the status quo with respect to a 
new kind of property and in a pressing emergency. 
Generally no one but the parties are interested in pre- 
serving the subject matter of the suit as a going concern 
till it can be sold, but in the case of a railroad the public 
are even more interested than the parties in having this 
done. It is mentioned in the South Carolina memorial 
as a measure of the abuse of Federal jurisdiction in this 
regard that one-fifth of the railroad mileage in the 
United States is in the hands of Federal court receivers. 
Considering the severity of the times and the suicidal 
cutting of rates by railroad companies for the purpose 
of securing business, I do not know that this proportion 
unfairly indicates the number of embarrassed and bank- 
rupt roads in this country, but it is hard to see why 
it is an argument against the appointment of receivers 



THE FEDERAL JUDICIARY 319 



to operate them. The disastrous consequences to the 
whole country, were these great arteries of the nation 
to cease to flow, can hardly be overstated ; and yet, un- 
less in the course of liquidation, sale and reorganiza- 
tion, they could, when insolvent, be withdrawn from 
liability to seizure and dismemberment by ordinary exe- 
cutions in the various jurisdictions which they traverse, 
their operation would become impossible. The ordinary 
insolvent laws of each State, even if their procedure 
had been at all adapted to the running of railroads, as 
it was not, would have supplied in such case but a poor 
substitute for the present receivership. Most railroads 
are to-day interstate, and the advantage of an ad in- 
terim management under practically the same jurisdic- 
tion on both sides of State lines is apparent. In the 
absence of statutory provision for such an exigency, 
the flexible procedure of a court of equity is fitted to 
meet it, and although the remedy was adopted soon after 
the building of railroads more than forty years ago and 
has been applied with increasing frequency ever since, 
it has not been deemed necessary by Congress or State 
legislatures to provide any other means for bridging 
the undoubted difficulties presented by the insolvency 
of railroad companies. 

One of the greatest objections urged to receiverships 
in the South Carolina memorial is that it removes the 
railroad property from local jurisdictions. But this 
objection would be incident to any imaginable tempo- 
rary management of the railroad pending proceedings 
to sell and distribute the proceeds. The injury to the 
sovereignty of the State involved in the requirement 
that its taxing officers shall make application to the 
Federal court having custody of property for an order 
for the payment of the taxes due upon it, instead of 



320 



RECENT CRITICISM OF 



violently taking it out of the court's possession, is one 
that must be charged to the Constitution of the United 
States, to the supremacy of the Federal jurisdiction 
where it conflicts with that of the State, herein declared, 
and to the circumstances by the force of which South 
Carolina is still in this country. The charge that in 
appointing receivers the Federal courts abolish the right 
of trial by jury in great stretches of country is untrue, 
for by the statute of 1887 suit may be brought against 
a receiver without leave of court, and this permits a suit 
at law with all its incidents. The fear entertained that 
the management by the Federal courts of property 
worth $13,000,000,000, without responsibility, would 
lead to malversation of funds and corruption does not 
seem to be justified by the history of Federal receiver- 
ships. The fact is, that no possible system of manag- 
ing railroads could be better adapted to a summary in- 
vestigation of the details of the management than that 
by a court of equity in which the court will always 
and at once entertain complaints by anyone in interest 
against its receiver and examine the facts upon which 
they rest. This may account, in part, for the very 
few instances of official corruption among Federal 
receivers. 

On the other hand, if any other and better way can 
be devised for the temporary management of insolvent 
railroads pending their sale, it may be conceded that 
there are substantial reasons for relieving Federal courts 
of equity from the duty. The business has grown to 
such an extent that regular judicial labors are much in- 
terfered with by the consideration of mere questions of 
railroad management. Unpleasant public controversies 
often follow in the wake of receiverships, having a tend- 
ency to put the court in the attitude of a party. The 



THE FEDERAL JUDICIARY 321 



more or less complete dependence of the court upon the 
receivers in matters of policy and the possibility that 
this confidence may be misplaced make the jurisdiction 
an irksome one. The immunity enjoyed by a receiver 
and a railroad in his charge from ordinary process in 
rem is very attractive to struggling railroad owners 
and friendly litigation is often begun merely to secure 
a receiver and tide over a stringency in the interest 
of all concerned. With no one in interest to oppose 
the appointment or to move its discharge after it is 
made, a receiver is secured and he is continued as long 
as all parties do not object and do not press the cause 
to final disposition. Courts usually have so much to at- 
tend to that they do not and can not investigate the 
weight or validity of reasons for delay in causes when 
not brought to their attention by complaint of some of 
the parties. Meantime the receivership is maintained 
and the irritation incident to the withdrawal of the rail- 
road from local jurisdictions is continued. The work 
of managing the road is saddled upon the court pending 
the coming of a time when a reorganization may be 
agreed upon or a better price obtained. I sympathize 
heartily with every effort to impose a practical limita- 
tion upon the duration of receiverships. The use of the 
courts as a harbor of refuge from creditors during a 
financial storm may be abused, and doubtless has been. 
The temptation to this resort is greatly increased, if, 
as is too often the practice, the controlling officer of the 
company is continued in the management as receiver. 
The patronage incident to the jurisdiction is one of its 
evils. Recognizing this and wishing to avoid a dis- 
agreeable race for office, courts usually acquiesce in the 
appointment of a person recommended by the parties, 
who is not infrequently the president or manager of 



322 RECENT CRITICISM OF 



the company, and whose failure to oppose the receiver- 
ship, it may be, has been secured by such a recommenda- 
tion. Consent applications for receiverships would be 
much less common if it were provided by statute that, 
wherever a case is made on preliminary application for 
the immediate appointment of a receiver, the clerk or 
marshal should act as temporary receiver for thirty 
days, with a fixed per diem compensation, at which time 
a permanent receiver, not an officer of the court, should 
be selected by the court after full notice to all parties, 
and that no one connected with the previous manage- 
ment of the railroad or interested in its bonds or stock 
should be eligible, even with consent of the parties. It 
has sometimes seemed to me that by virtue of the power 
to pass a bankrupt law, and to regulate interstate com- 
merce, a national bureau for the sale of the assets of 
insolvent interstate railroads and their ad interim opera- 
tion might be established, something like that now pro- 
vided for national banks, and that the executive head 
of such a bureau might be better able to speed the sale 
of the railroads and shorten the duration of their official 
management than courts. When, however, one attempts 
to formulate a system which shall have the flexibility of 
the present procedure and its adaptability for preserv- 
ing the real status quo during the adjustment, one is 
obliged to admit that the court management pendente 
lite has advantages over any other, anomalous in some 
respects as it may seem. Probably this explains the 
failure of Congress or the State legislatures to provide 
any other system, and even the zealous South Carolina 
memorialists in their recommendation to Congress were 
unable to point out a better way than court receiverships 
with a few minor limitations. In any event, until some 
new way is devised for the temporary operation of 



THE FEDERAL JUDICIARY 323 



railroads, pending insolvency or foreclosure and sale, 
courts must assume it, and it ill becomes anyone to criti- 
cise their action in doing so, and to charge it to their 
greed of power, when any other course would result in 
disastrous consequences to the parties in interest and 
the country at large. 

On the whole, when the charges made against Federal 
courts of favoritism toward corporations, are stripped 
of their rhetoric and epithet, and the specific instances 
upon which the charges are founded are reviewed, it ap- 
pears that the action of the courts complained of was 
not only reasonable but rested on precedents established 
decades ago and fully acquiesced in since, and that the 
real ground of the complaint is that the constitutional 
and statutory jurisdiction of the Federal courts is of 
such a character that it is frequently invoked by cor- 
porations to avoid some of the manifest injustice which 
a justifiable hostility to the corrupt methods of many 
of them inclines legislatures and juries and others to 
inflict upon all of them. 

We come finally to the relation of the Federal courts 
to organized labor. The capitalist and laborer share the 
profit of production. The more capital in active employ- 
ment the more work there is to do, and the more work 
there is to do, the more laborers are needed. The greater 
the need of laborers, the better their pay per man. 
It is clearly in the interest of those who work that capital 
shall increase more rapidly than they do. Everything, 
therefore, having a legitimate tendency to increase the 
accumulation of wealth and its use for production, will 
give each workingman a larger share of the joint result 
of capital and labor, and it is in a large measure be- 
cause this country has grown more rapidly in capital 
than in population, that wages have steadily increased. 



RECENT CRITICISM OF 



But while it is in the common interest of labor and 
capital to increase the fruits of production, yet in 
determining the share of each their interests are plainly 
opposed. Though the law of supply and demand will 
doubtless, in the end, be the most potent influence in fix- 
ing this division, yet during the gradual adjustment to 
the changing markets and the varying financial con- 
ditions, capital will surely have the advantage, unless 
labor takes united action. During the betterment of 
business conditions, organized labor, if acting with rea- 
sonable discretion, can secure much greater promptness 
in the advance of wages, than if it were left to the 
slower operation of natural laws, and, in the same way, 
as hard times come on, the too eager employer may be 
restrained from undue haste in reducing wages. The 
organization of capital into corporations, with the posi- 
tion of advantage which this gave in a dispute with 
single laborers over wages, made it absolutely necessary 
for labor to unite to maintain itself. For instance, 
how could workingmen, dependent on each day's wages 
for living, dare to take a stand which might leave them 
without employment if they had not by small assess- 
ments accumulated a common fund for their support 
during such emergency? In union they must sacrifice 
some independence of action, and there are bad results 
from the tyranny of the majority in such cases, but the 
hardships which have followed impulsive resort to ex- 
treme measures have had a good effect to lessen these. 
Experience, too, will lead to classification among the 
members so that the cause of the skilled and worthy 
shall not be leveled down to that of the lazy and 
neglectful. Like corporations, labor organizations do 
great good and much evil. The more conservatively 
and intelligently conducted they are, the more benefit 



THE FEDERAL JUDICIARY 325 



they confer on their members. The more completely 
they yield to the dominion of those among them who 
are intemperate of expression and violent and lawless 
in their methods, the more evil they do to themselves and 
society. Unfortunately, there are large organizations 
of the latter class, and, in the heat of a bitter con- 
test with employers, rights of person and property are 
sometimes openly violated in avowed support of the 
cause of labor. The infractions of the law, actual and 
threatened, are palpable, and the interference of the 
courts by their usual processes to prevent irreparable 
injury to business and property becomes necessary. 
Such judicial action often results in discouraging the 
whole movement and brings down upon the courts the 
fierce denunciations of the defeated leaders and arouses 
the hostility of many who would not join in the open 
breaches of the law, and yet so sympathize with the 
cause as to blind them to the necessity of the sup- 
pression of such lawlessness. 

The employees of railroad companies and others en- 
gaged in transportation of freight and passengers gen- 
erally have well-organized unions, and the controversies 
arising over wages have been many. A vast majority 
of these have been settled without a resort to extreme 
measures, through the conservative influence of level- 
headed labor leaders and railroad managers, but in the 
last twenty years there have been some very extended 
railroad strikes, accompanied by the boycotts and open 
violence with which society has now become familiar. 
The fact that many railroads have been operated by 
Federal receivers, the non-residence of railway corpora- 
tions in the States where the strikes occur, and the in- 
terstate commerce feature of the business, have brought 
some of these violations of property and private and 



826 



RECENT CRITICISM OF 



public right within the cognizance of Federal courts. 
Because the participants in such contests have been 
spread more widely over the country than in similar con- 
tests with which State courts have had to deal, the ac- 
tion of the Federal courts in these cases has attracted 
more public attention and evoked more bitter condemna- 
tion by those who naturally sympathize with labor in 
every controversy with capital. 

The efficacy of the processes of a court of equity to 
prevent much of the threatened injury from the public 
and private nuisances which it is often the purpose of 
the leaders of such strikes to cause, has led to the 
charge, which is perfectly true, that judicial action has 
been much more efficient to restrain labor excesses than 
corporate evils and greed. If it were possible by the 
quick blow of an injunction to strike down the con- 
spiracy against public and private rights involved in 
the corruption of a legislature or a council, Federal and 
other courts would not be less prompt to use the remedy 
than they are to restrain unlawful injuries by labor 
unions. But I have had occasion to point out that the 
nature of corporate wrong is almost wholly beyond the 
reach of courts, especially those of the United States. 
The corporate miners and sappers of public virtue do 
not work in the open, but under cover; their purposes 
are generally accomplished before they are known to 
exist, and the traces of their evil paths are destroyed 
and placed beyond the possibility of legal proof. On 
the other hand, the chief wrongs committed by labor 
unions are the open, defiant trespass upon property 
rights and violations of public order, which the processes 
of courts are well adapted both to punish and prevent. 

The operation of the interstate commerce law is an 
illustration of the greater difficulty courts have in sup- 



THE FEDERAL JUDICIARY 327 



pressing corporate violations of law than those of trade 
unions. The discrimination between shippers by re- 
bates and otherwise, which it is the main purpose of 
the law to prevent, is almost as difficult of detection 
and proof as bribery, for the reason that both partici- 
pants are anxious to avoid its disclosure; but when the 
labor unions, as they sometimes do, seek to interfere 
with interstate commerce and to obstruct its flow, they 
are prone to carry out their purposes with such a blare 
of trumpets and such open defiance of law that the proof 
of their guilt is out of their own mouths. The rhetorical 
indictment against the Federal courts, that from that 
which was intended as a shield against corporate wrong, 
they have forged a weapon to attack the wage-earner, 
is in this way given a specious force which a candid 
observer will be blind to ignore. Thus are united in a 
common enmity against the Federal courts the populist 
and the trade unionist with all those whose political ac- 
tion is likely to be affected by such a combination. And 
yet their enmity has no other justification than the dif- 
fering and unavoidable limitations upon the efficacy of 
judicial action in respect to corporate and labor evils. 

As a matter of fact there is nothing in any Federal 
decision directed against the organization of labor to 
maintain wages and to secure terms of employment 
otherwise favorable. The courts, so far as they have ex- 
pressed themselves on the subject, recognize the right of 
men for a lawful purpose to combine to leave their em- 
ployment at the same time, and to use the inconvenience 
this may cause to their employer as a legitimate weapon 
in the frequently recurring controversy as to the 
amount of wages. It is only when the combination is 
for an unlawful purpose and an unlawful injury is 
thereby sought to be inflicted, that the combination has 



328 



RECENT CRITICISM OF 



received the condemnation of the Federal as well as of 
State courts. 

The action of the Federal courts all over the country 
in the recent American Railway Union strike in issuing 
injunctions to prevent further unlawful interference by 
the strikers with the carrying of the mails, and the 
flow of interstate commerce, followed by the commitment 
for contempt of the strike leaders who defied the in- 
junction served on them, is what has called out the 
official protests of the Governors of Illinois and Colo- 
rado, and the phrase " government by injunction " has 
been invented to describe the alleged usurpation of 
power by the Federal tribunals in this crisis. 

When the history of the great strike shall be written 
in years to come, the absurd expectations and purpose 
of its projectors and their marvelous success in delud- 
ing a myriad of followers into their active support will 
seem even more difficult of explanation than they do 
to-day. The mind that could conceive and so far exe- 
cute the plan of taking the entire population of this 
country by the throat to compel them to effect the 
settlement of a local labor trouble in Chicago, was that 
of a genius, however misdirected The Governor of 
Illinois, who coined the phrase " government by injunc- 
tion," says that the Federal courts have added legisla- 
tive and executive functions to their ordinary judicial 
office, in that they have declared in their orders of in- 
junction that to be unlawful which was lawful before, 
and have sought to enforce obedience to such orders by 
an army of marshals and soldiers. It is a little difficult 
to understand the working of a mind having the dis- 
cipline of a legal training and the experience of judicial 
service, which can honestly and sincerely maintain (and 
I do not wish to impugn the sincerity of the Governor 



THE FEDERAL JUDICIARY 329 

of Illinois) that the combination described in the bill in 
the Debs case and enjoined in the order of injunction 
was not unlawful. If it was not so, then there is no 
law in this country securing the right of private prop- 
erty, no law authorizing the Federal government to 
operate the mails, no law by which the regulation of 
interstate commerce is vested in the General Government. 
A public nuisance more complete in all its features 
than that which Debs and his colleagues were engaged 
in furthering can not be imagined. Such nuisances have 
been frequently enjoined by courts of equity on the 
bill of the Attorney-General. Was there any doubt that 
Debs proposed to continue his unlawful course unless 
restrained? Was there any doubt that the injury would 
be irreparable and could not be compensated for by 
verdict at law? Was it for the court to hesitate to 
issue its process because it had reason to believe that 
it would not be obeyed? The novelty involved in the 
application of such a remedy to such an injury was not 
that injuries of the same general character had not be- 
fore been restrained by injunction, but only that never 
before in the history of the courts had injuries of this 
kind been so enormous and far-reaching in their effect. 
It was not that men had not before been ordered by 
process of court to desist from such injuries, but never 
before had so many men been engaged in inflicting them. 
Nor can it affect the power of Federal courts to remedy 
wrongs within their lawful cognizance that the wrong 
would have been prevented if the executive of another 
sovereignty than that under which they are constituted 
had acted promptly to suppress it. The Federal courts 
did not assume executive powers any more than they 
do so when they issue any process to the marshal, and 
the marshal as the subordinate of the President executes 



330 



RECENT CRITICISM OF 



it. The extent of the actual and threatened injury and 
the possible resistance to lawful process required the 
marshal to call to his assistance much aid, but it is a 
latter-day doctrine that a court is usurping the execu- 
tive function, in calling upon the executive to use addi- 
tional force to avoid a possible defeat of its lawful proc- 
ess. The conservative course of the President and the 
Attorney-General in first applying to the courts for 
process and the subsequent firmness exhibited by those 
officers in executing that process by all the means avail- 
able, will cause the country to hold them always in 
grateful remembrance. The duty of the courts to act 
on this initiative was so plain that while it does not en- 
title them to any especial commendation, it would seem 
that it should protect them from serious attack. 

The real objection to the injunction is the certainty 
that disobedience will be promptly punished before a 
court without a jury. It is hardly necessary to defend 
the necessity for such means of enforcing orders of 
court. If the court must wait upon the slow course of a 
jury trial before it can compel a compliance with its 
order, then the efficacy of its process would be seriously 
impaired. Has any injustice been done to Debs in his 
trial by the court? Is there the slightest doubt in the 
mind of his fiercest supporter that he violated the in- 
junction? Why, then, complain of his conviction before 
a tribunal authorized to try him? The argument seems 
to be that because many men are determined to violate 
the rights of the public and their fellow-citizens in spite 
of the lawful orders of the Federal court restraining 
them from so doing, they should, on account of their 
number and popular strength, have a right which no 
Anglo-Saxon has hitherto ever enjoyed, to interpose 
a jury trial between them and the enforcement of a 



THE FEDERAL JUDICIARY 331 

court's order. If the criticisms under discussion are 
directed against the existence of courts, then their 
weight depends on different considerations from those 
which apply on the assumption that courts are to be 
maintained for the purpose of remedying wrongs. But 
they are professedly based on the Constitution of the 
United States, and that certainly contemplates courts, 
whose decrees shall be enforced, however much resisted, 
and which shall not be merely advisory councils whose 
efficacy depends on their powers of persuasion. 

I am aware that there were many conservative, un- 
prejudiced and patriotic citizens in this country, many 
of them members of the bar and of this Association, 
whose anxiety that the Chicago riots should be sup- 
pressed was as great as that of anyone, and yet who 
were of opinion that the action of the Federal courts in 
issuing the injunctions, which were issued on the applica- 
tion of the Attorney-General, was an unwise stretching 
of an equitable remedy to meet an emergency which 
should have been met in other ways. To all such persons, 
I commend the reading of Mr. Justice Brewer's opinion 
in the Debs case. It is a great judgment of a great 
court, and makes it as clear as midday that the process 
therein issued was justified by every precedent, and was 
the highest duty of the court. The exercise of that 
duty has, however, only increased the number of those 
who sincerely believed that the Federal courts are con- 
stituted to foster corporate evils and to destroy all 
effort by labor to maintain itself in its controversies 
with corporate capital. 

I have reached the end of a much too-long discussion 
of the relation of the Federal judiciary to some of the 
important issues of the day. It will not be surprising 
if the storm of abuse heaped upon the Federal courts 



332 CRITICISM OF FEDERAL JUDICIARY 



and the political strength of popular groups, whose 
plans of social reform have met obstruction in those tri- 
bunals, shall lead to serious efforts through legislation 
to cut down their jurisdiction and cripple their effi- 
ciency. If this comes, then the responsibility for its 
effects, whether good or bad, must be not only with 
those who urge the change, but also with those who do 
not strive to resist its coming. 

The earliest assaults upon the Federal judiciary and 
their harmless character in the light of the event, recon- 
cile one to much of the fiery invective and blood-curd- 
ling epithets hurled at men who, equally with their ac- 
cusers, are American freemen, impressed with the abso- 
lute necessity for maintaining sacred the guaranties of 
life, liberty and property, and who are probably not 
more in love with corruption and greed, or more dis- 
posed to crush the humble and worthy, than the average 
of their fellow-citizens. 

The saving grace of American humor, which delights 
in the contemplation of grotesque exaggeration, has 
often saved us from domestic turbulence, which the tur- 
gid exuberance of denunciatory language might other- 
wise have excited against lawfully-constituted au- 
thority; and it may be that the same useful trait will 
prevent the "success of the present agitators against the 
Federal courts. 

But whatever fate betide the Federal judiciary, I 
hope that it may always be said of them, as a whole, 
by the impartial observer of their conduct, that they 
have not lacked in the two essentials of judicial moral 
character, a sincere desire to reach right conclusions 
and firmness to enforce them. 



ADMINISTRATION OF CRIMINAL LAW 



TO THE GRADUATING CLASSES OF THE LAW SCHOOL. OF 
YALE UNIVERSITY ON JUNE 26, 1905 

Mr. President, Mr. Dean and Gentlemen of the 
Yale Law School: One of the most useful results of 
our recent territorial expansion for those who have had 
to do with uniting our new possessions with this country 
and adjusting certain of the Spanish codes which we 
found in force in Porto Rico and the Philippines to the 
new American sovereignty, has been the comparative 
study made necessary of the two great systems of law 
— the Roman, or Civil Law, and the Anglo-Saxon, or 
Common Law. It must be admitted that those of us 
who have been educated in the principles of the common 
law and have not extended our study much into general 
jurisprudence, are apt to be narrow in our prejudices 
in favor of the common law and are prone to think that 
there is very little for us to learn from the civil law 
which can be usefully adopted by a government in which 
the liberty of the individual is held so sacred, and the 
power of the government towards the subject or the 
citizen is restrained by such careful regulations as in 
England, in America or any of the popular self-govern- 
ments for which either of those countries is responsible. 

But certainly when in actual practice the common 
law lawyer is brought to the study of the beautifully 
simple and exactly comprehensive language of the civil 
code governing the rights between individuals, he be- 
gins to feel the veneration that comes from consciously 
viewing the work of twenty centuries of jurists and 

333 



334 ADMINISTRATION OF CRIMINAL LAW 



lawgivers who have been struggling during all that 
period to simplify and make lucid the rules of law and 
to reduce it to the science that under the civil code it 
certainly has become. When he comes to an examina- 
tion of the political or governmental theory of the civil 
law, he finds more reason for his pride in, and love of, 
the common law in this, that under the civil law the state 
seems a separate entity, different from the people who 
constitute it, different from the individual who comes 
into contact with it — an entity whose interest is to be 
more guarded and protected than that of any other in 
the community, and for the welfare of this entity it is 
the principle of the civil law that the interest of the 
individual must yield, while at the common law the 
theory is that the state is but an aggregation of the 
individual, a great partnership in which he has a voice. 
In the common law, the spirit manifested in the rule 
caveat emptor — that every man must look after him- 
self — leaves blunt and harsh results (where actual and 
affirmative fraud is not committed) which the civil law 
would ameliorate by requiring one individual to treat 
the other with more equity, with more morality one may 
say, with more care that the other shall not, by his 
own neglect, lose his rights. There is more of paternal- 
ism in the civil law — more care for the subject by the 
government — less disposition to let individuals work out 
their rights between them. The common law stands 
for the utmost liberty of the individual, and as a price 
of this liberty it imposes upon the person enjoying it 
the burden of looking out for himself. 

When we leave the subject of civil rights and come to 
the punishment of the individual for offenses against 
the state, we find in the civil law greater anxiety that 
the state should be protected against crime, than we 



ADMINISTRATION OF CRIMINAL LAW 335 



do in the common law. The civil lawyer looks at the 
crime more from the standpoint of the government than 
from that of the individual and more from the impor- 
tance to the community that crime shall be not only 
punished but prevented, while there runs all through 
the common law the anxiety that the prosecution of 
crime may not be used by the government to oppress 
the individual and that there shall be thrown about the 
individual safeguards so great as to give impression 
that at common law the liberty of the individual is on 
the whole of greater importance than the safety of the 
community from crime. Of course between the trend 
of the one system and the trend of the other is the golden 
mean of the legislator and government maker by which 
shall be secured the protection of society without the 
oppression of the individual. 

When the common law lawyer faces the problem of 
reforming the criminal laws and procedure of a country 
that has heretofore been governed by the civil law, he 
feels certain that here at least is room for a wholesome 
change and the introduction into the patient of a very 
large dose of the principles which lie at the foundation 
of the prosecution of crime and are supposed to involve 
the protection of the rights of civil liberty in the in- 
dividual. 

The institution of the writ of habeas corpus which, 
though a civil process, and not a criminal action, is 
generally used to test the validity of some pretended 
criminal process, is attended with unmixed good. The 
principle that no man shall be confined save under due 
legal process is as well known to the civil as to the com- 
mon law, but the difference between the two systems 
from a political and practical standpoint is well illus- 
trated in respect to the enforcement of the principle. 



336 ADMINISTRATION OF CRIMINAL LAW 



At the civil law the rule that no man shall be illegally 
confined is operative upon the conscience of the judges 
and the jailers, and if their consciences do not move 
them, the poor prisoner and his friends are without a 
remedy. At the common law the prisoner or his friends 
has the practical remedy of the writ, which being of 
high privilege he may obtain for the asking of any 
judge, who runs the risk of incurring the heaviest 
penalty himself if he refuse. This is but one of the - 
many instances in which! our Anglo-Saxon ancestors 
hammered out their civil liberty by securing from their 
would-be royal oppressors not general declarations of 
principles of freedom like a French constitution, but 
distinct and definite promises that certain rules, not of 
substantive, but of adjective law should obtain./ To 
them, it was the securing of the means by which they 
could themselves secure their liberty that must be pre- 
served, for with the machinery at hand, with the pro- 
cedure available there was no difficulty in maintaining 
the ultimate object, civil rights and liberty. Run 
through the Magna Chart a of 1215, the Petition of 
Right of 1625, and the Bill of Rights of 1688, the 
great charters of English liberty, and you find in them 
an insistence, not on general principles, but upon pro- 
cedure^ Take the most comprehensive — " No man shall 
be deprived of life, liberty or property without due 
process of law 99 : this does not attempt to define the 
cases in which a man shall be entitled to life, liberty and 
property, but points to, and insists upon, the necessity 
for a legal procedure by which it shall be done. 

Then the requirement that no man shall be convicted 
save by a jury of his peers. That again is mere pro- 
cedure. So too that he shall be informed of the ac- 
cusation against him, that he shall be confronted by the 



ADMINISTRATION OF CRIMINAL LAW 337 



witnesses ; that he shall not be compelled to testify in a 
criminal case against himself ; that he shall not be con- 
victed of treason save by evidence of two witnesses to 
the overt act; that he shall not be subject to unreason- 
able searches; that he shall not be put twice in jeop- 
ardy for the same offense — all these are but instances 
of judicial or other procedure by which general and 
ultimate rights could be maintained and protected. An 
Anglo-Saxon had but little use for declarations of ab- 
stract principles that rested for their preservation on 
the consciences of their rulers. 

The means of securing civil rights and preserving the 
individual from the oppression of the government which 
I have mentioned above, have been embodied in the Fed- 
eral and State constitutions, and as they served their 
purposes as well in ancient times when the battle for 
civil liberty was fought and won, the first impulse of the 
American lawyer is to apply them all as a panacea to 
the government and criminal procedure of our new 
possessions. But further investigation, with a deepen- 
ing sense of responsibility for the government of a body 
of people whose welfare has been forced upon us as a 
sacred trust, leads to a much more conservative attitude 
in respect of the needed changes in the existing pro- 
cedure. We can not escape a re-examination of the 
reasons for the constitutional limitations I have been 
discussing. We must cease to regard them as fetiches 
to be worshiped without reason and simply because they 
are. We must follow them to their source, trace their 
development and elaboration or modification due to con- 
temporaneous needs, and determine whether their exist- 
ence to-day is due rather to a veneration for the great 
use they served in the past than to any present utility. 
We have no right to force on the Porto Ricans or the 



338 ADMINISTRATION OF CRIMINAL LAW 



Filipinos institutions of our own which have proved of 
the highest benefit to us, unless we can see, on other than 
mere sentimental grounds connected with our own his- 
tory, that such institutions will now prove beneficial to 
them in their present condition. 

The great bulwark and protection of the individual 
at common law against the power of the government 
and the king, exerted through judges removable at will 
in criminal prosecutions for political offenses, was trial 
by jury. I have no time, if I could do so, to trace the 
growth of this venerable tribunal from a mere collec- 
tion of individuals in the vicinage who were generally 
witnesses of the facts they were assembled to adjudge, 
to the present body of twelve persons selected from the 
community in which the crime is committed, but required 
to be impartial and so wholly without knowledge of the 
facts as witnesses. 

Suffice it to say that as an effect of the trend toward 
civil liberty and popular rights in the French Revolu- 
tion and the uprising of 1848, the trial by jury in 
criminal cases was adopted in France, in Belgium, in 
Germany, in Norway and Sweden, in Spain, in Italy 
and Russia except in trials for political offenses, and is 
now in use in these countries. This constitutes a trib- 
ute to its value as an institution in countries in which it 
did not have its beginning and growth, and perhaps 
would furnish a solid reason for our adopting it in 
Porto Rico and the Philippines. It has been adopted 
in Porto Rico. It has not been adopted in the Philip- 
pines. I do not think it too much to say, however, that 
it has proven to be a failure thus far in Porto Rico. 

The first question was in the Philippines, shall it be 
adopted in civil cases? No civil law country, I think, 
has adopted it for this purpose. Shall we do so? It 



ADMINISTRATION OF CRIMINAL LAW SS9 



would seem unwise. In the first place, it is by no means 
clear that in our own jurisprudence trial by jury in civil 
cases is an unmixed good. It is true that in the Federal 
Constitution the right of trial by jury in cases at com- 
mon law involving more than twenty dollars is secured 
by fundamental mandate in all courts in the United 
States. But when we examine as a whole the civil liti- 
gation in our courts, we find the tendency is toward trial 
without a jury in all cases but suits for personal in- 
jury against corporations. In respect to jury trials in 
civil actions in Anglo-American law, we find one of these 
anomalies, entirely illogical, but easily explainable on 
historical grounds, that would disgust a civilian, but 
which only endears the system to one of Anglo-Saxon 
origin and education. 

When an Anglo-Saxon wished to mend his structure 
of jurisprudence, he merely added a room where it was 
needed without any regard to the general symmetrical 
appearance of the building, and with the addition of 
many rooms for various reasons, other parts have be- 
come useless but remain to testify to the history of the 
growth of the structure. Much more than half the 
civil suits now brought are what would have been called 
actions in equity before the modern state codes of pro- 
cedure had united common law actions and equitable 
action in one form called a civil action. Equity, as you 
know, was a system of remedial procedure which grew 
up side by side with the ordinary common law practice 
and was instituted in early days by the King, to whom 
appeals were made against the rigors and injustice of 
his own courts. He delegated the lord keeper of his 
great seal, then usually an ecclesiastic, the power to 
moderate the severity and inelasticity of the common 
law methods, and the ecclesiastic statesman, nothing 



340 ADMINISTRATION OF CRIMINAL LAW 



loath to exercise power for the glory of his masters, 
Divine and temporal, introduced methods of remedial 
justice which he derived from the canon law and the 
ecclesiastical courts. With this beginning came the 
great body of equity jurisprudence which, as I say, is 
the basis for a large majority of civil suits brought to- 
day, certainly suits for personal injury against cor- 
porations are excluded. In suits in equity the judge 
hears and decides the issue of fact. The issues may be, 
and often are, very similar to those arising in suits at 
common law, the genuineness of a signature, the exist- 
ence of fraudulent motive, the identity of an individual, 
damage to business by violation of patents, trade marks 
or contract rights, and all the variety of issues pre- 
sented in civil litigation. Now the Federal constitution 
requires that such issues arising at common law shall be 
tried by a jury, but if in an equity suit the court may 
try them. Since the abolition of the distinction be- 
tween law and equity in civil actions in our codes of 
procedure, it requires a lawyer to tell whether a suit 
brought is in equity or law. Certainly a constitutional 
mandate that requires a jury in less than half the civil 
issues, and only in those when in a certain form of ac- 
tion, distinguishable only by a lawyer, can hardly be 
said to rest on any very broad and sound principles. 
Of course in suits for personal injury against corpora- 
tions, the plaintiff relies on the supposed sympathy of 
twelve laymen with the poor plaintiff against the rich 
corporation, both to find the facts in favor of the plain- 
tiff and also to swell the damages to a large sum. But 
this hardly constitutes a reason for maintaining the 
jury in a system which is supposed to dispense justice 
to all, whether rich or poor — impartially. The aboli- 
tion of the jury in civil cases would relieve the public 



ADMINISTRATION OF CRIMINAL LAW 341 



of a great burden of expense, would facilitate the hear- 
ing of all civil suits, and would not, I think, with proper 
appeal deprive any litigant of all he is entitled to, an 
impartial hearing. Of course, it will never be done in 
courts of the United States and perhaps never in any 
of the states, although in some of them the tendency is 
strong in that direction. However this may be in view 
of present conditions, we are not called upon to intro- 
duce the jury in civil cases into the Philippines. 

In the matter of the criminal procedure, the question 
is very different. 

In a country where a part of the judges are aliens, 
it would add much to the satisfaction of the people 
if a part of the judicial tribunal were made up of a 
jury of natives, and if this were consistent with the 
safety of the community, those responsible for the new 
government would certainly introduce the jury system 
in the trial of crimes. The whole theory of the trial by 
jury is that out of the body of the community you may 
select, at haphazard, twelve men who will be so deeply 
impressed with the necessity of punishing crime on the 
one hand and of allowing innocent defendants to escape 
on the other hand, that they will decide truly and justly 
as between the community and the defendant. The sys- 
tem assumes a sense of responsibility in the ordinary 
citizen subject to jury duty for the good working of 
yie government and for the interests of society at large, 
which will overcome the natural disposition to avoid in- 
flicting punishment on another, and will enable the jury 
to find the verdict as the law and evidence shall require. 
Manifestly such a tribunal would have no place among 
an ignorant people, or indeed even among a people who 
are somewhat educated, if they have not inculcated in 
them a sense of responsibility for, and of sharing in, the 



342 ADMINISTRATION OF CRIMINAL LAW 



government. Such people are likely to prove unworthy 
jurors and to be affected in all their verdicts by their 
emotions and by every other motive than that which 
should control them, to wit, the well-being of society. 
It is this sense of justice which is implanted naturally 
in the Anglo-Saxon breast, but which is absent in the 
Porto Kican and the Filipino. Its absence disqualifies 
either from filling the measure of stiffness and con- 
servativeness of character required to make a proper 
juryman. 

Another difficulty involved in introducing the jury 
system into the Philippine Islands, and indeed into any 
civil law country, is the absence of a code of evidence 
without which the jury system is not likely greatly to 
promote just findings on issues presented. In the Anglo- 
American law, there is an extensive series of rules gov- 
erning the admission of evidence, which now may al- 
most be called a code of evidence, which had its origin, 
as Professor Thayer of Harvard so clearly shows, in 
the necessity for protecting the jury in its considera- 
tion of issues brought before it, from being led astray 
and misled by evidence of a kind likely to have greater 
power of persuasion than judges and men of affairs from 
wide experience thought it ought to have. Some of the 
rules of evidence seem arbitrary, but generally the 
rules of relevancy and competency are based upon the 
long experience in human affairs. It is judge-made 
law which has been worked out, as Professor Thayer 
shows, to meet the exigencies of a trial by laymen not 
experienced in hearing cases, who would not, with every- 
thing allowed to be presented to them, winnow the wheat 
from the chaff. The civil law has no such code. The 
question whether evidence is relevant to an issue and will 
assist in its decision, is largely a matter in the discre- 



ADMINISTRATION OF CRIMINAL LAW 84S 



tion of the judges, in hearings at the civil law. We 
can well remember the astonishment and almost horror 
that thrilled this country during the second trial of 
Dreyfus before the court martial, when witnesses were 
allowed to testify to all sorts of hearsay tending to 
show Dreyfus' guilt, and French generals were allowed 
to go before the court and testify with their hands on 
their hearts of their conviction that Dreyfus was guilty, 
without really having any personal knowledge on the 
sub j ect at all. I am not prepared to say that the Drey- 
fus trial did not go beyond what is ordinarily permitted 
in a French court. I think it did. But I am certain 
that no such rules of evidence as obtain in our pro- 
cedure are known to the civil law countries of Europe 
unless adopted within very recent years. It has been 
necessary for use in the Philippine Islands to intro- 
duce a code of evidence for the trial of crimes even 
without a jury, which is also applicable to the trial of 
civil cases. By order of President McKinley all the 
constitutional protections to the defendant in a criminal 
case were extended to defendants in criminal cases in 
the Philippines except the right of trial by jury. 

I am not certain that in a new country this was en- 
tirely wise. When examined as an original proposi- 
tion, the prohibition that the defendant in a criminal 
case shall not be compelled to testify seems in some 
aspects to be of doubtful utility. If the administra- 
tion of criminal law is for the purpose of convicting 
those who are guilty of crime, then it seems natural to 
follow in such a process the methods that obtain in 
ordinary life. If anything has happened and it is im- 
portant to discover who is the author of it, the first 
impulse of the human mind is to inquire of the person 
suspected whether he did it and to cross-examine him as 



344 ADMINISTRATION OF CRIMINAL LAW 



to circumstances. Certainly this is the domestic rule 
by which your wife or your mother proceeds to find out 
who it is that broke the window, who it is that stole 
the jam from the pantry, or why it is that the sweeping 
has not been done by the person charged with that duty. 
She goes to the suspected culprit and asks the questions 
natural under such circumstances, to see whether her 
suspicion of guilt is well founded. Now the proposition 
that it is unjust to call upon the person suspected of a 
crime to tell of his connection with it is at first sight 
untenable. Why is it unjust? If he is not guilty, will 
he not have the strongest motive for saying so, and if 
he is guilty and seeks to escape liability, will he not use 
every effort to make his conduct consistent with his 
innocence? Why, then, does it expose the defendant to 
improper treatment if an officer of the law at once be- 
gins to interrogate him concerning his guilt? But the 
answer is, he has the right to consult counsel. He 
should not be hurried into statements which he may 
subsequently desire to retract. In other words, he 
should be given an opportunity, after he has committed 
the crime, to frame in his mind some method by which 
he can escape conviction and punishment. I am in- 
clined to think that the expression : " No person shall be 
compelled to testify against himself," if traced back to 
its original source, had reference to a system of torture 
which did prevail in the time of the early English kings, 
and which was intended to denounce, not the mere call- 
ing of a defendant to testify and inviting him by ques- 
tions so to do, but the actual compulsion of evidence 
by physical means. Now, as Bentham shows, the prin- 
ciple does not include compulsion; it is construed to 
mean that before the jury or tribunal trying the de- 
fendant, he may not be called upon to answer questions. 



ADMINISTRATION OF CRIMINAL LAW 345 



Bentham's criticism of this rule is well known. He 
says it can be only supported by the fox-hunter's rea- 
son — that it is right that the criminal or the fox should 
have a little start, and this advantage in the beginning, 
in favor of the defendant and against the state, is the 
refusal of the law to allow the state to call the de- 
fendant to prove its case. It makes the conviction of 
the criminal a game which is played out under certain 
rules, and the interests of society are lost sight of. At 
common law, the defendant was not allowed to testify, 
even if he would, but that rule was found to work 
harshly against innocent men who, going on the stand, 
might explain the suspicious circumstances connecting 
them with the crime and show their innocence; so that 
the rule for years in this country, and very recently 
in England, is that the defendant may take the stand 
if he will, but if he fails to take the stand the counselor 
for the prosecution may not comment on his failure to 
do so. The result of the change has been, I think, to 
lead to more convictions than before, for a jury may be 
charged as explicitly as possible to disregard the fact 
tHat the defendant does not go on the stand, but it is 
impossible to eradicate from the minds of sensible men 
the impression that if one who is charged with the crime 
refuses to explain by his own evidence that he was not 
guilty, that the reason for his so doing is because he is 
afraid he can not so explain. 

Another principle of the law of evidence embodied in 
the constitutional limitations is that the defendant must 
be confronted with the witnesses who testify against him. 
This seems to impose unnecessary hardship upon the 
government, because it certainly would not injure the 
defendant if depositions were taken and the defendant 
or his counsel were permitted to cross-examine. It is a 



346 ADMINISTRATION OF CRIMINAL LAW 



case of undue tenderness toward the defendant. There 
is no such restriction upon the defendant when he is 
seeking to prove his innocence, for he may use deposi- 
tions without number. 

* The limitation upon unreasonable searches is another 
constitutional restriction which has been used to save 
men from conviction. Indeed, uniting that with the 
one preventing the court or prosecutor from interrogat- 
ing the defendant as to his guilt, makes it impossible 
in some classes of cases to convict persons well known to 
be guilty./' It is the great shield which the powerful and 
unlawful trusts and violators of the interstate commerce 
laws have to prevent their successful prosecution. It 
prevents the use of process to obtain books and papers 
in which the defendant has violated the law or has 
recorded statements showing guilty) Our supreme 
courts generally, instead of restricting the operation of 
these constitutional limitations, have given them, when- 
ever occasion arose, a wider scope than the letter of the 
limitation seemed to require, in the interest, it was said, 
of the liberty of the individual. 

Then there is the general rule that the guilt of the 
defendant, in order to justify conviction, must be 
shown beyond a reasonable doubt. This is a fair and 
proper rule, and has usually been regarded as the other 
side of the rule that the defendant is presumed to be 
innocent. But the Supreme Court of the United States 
has recently carried it to such a point by construction 
as to treat the presumption of innocence, not as being 
only the mere counterpart of this rule, but even as sub- 
stantive evidence and as the equivalent of a witness 
testifying affirmatively, and continuing to testify from 
the beginning to the end of the case in favor of the 
innocence of the defendant, a construction not sustained 



ADMINISTRATION OF CRIMINAL LAW 347 



by Professor Thayer, and seemingly much enlarging 
the previous operation of the presumption of inno- 
cence, all out of tenderness to the defendant. These 
rules and others intended to make it as difficult as 
possible to convict a defendant were the result of the 
savage character of the common law crimes, when the 
defendant was not allowed counsel, and there were one 
hundred and sixty capital offenses at common law. The 
judges, of course, being men and having pity, some- 
times seized the opportunity themselves to act as coun- 
sel for the defendant, and introduced the rules which 
we have alluded to and maintained them in the interest 
of mercy. They have been moderated a very little, 
although the reason for them has long passed away. 
Defendants are now allowed counsel, and if unable to 
pay counsel the state employs counsel to defend them. 

Therefore I say that if a jurist from Mars were to 
come down to earth and be charged with the duty of 
framing a criminal code which should reach the golden 
mean between preserving the interests of society by 
punishing and preventing crime on the one hand and 
saving the individual charged with crime from liability 
of unjust conviction on the other, I think it doubtful 
whether he would adopt the constitutional restrictions 
which I have been discussing. The general law of evi- 
dence, especially that which excludes hearsay, can well 
be defended on grounds of general policy, for though 
hearsay at times might convict in proper cases where 
its exclusion acquits, cross-examination is such a 
searcher of the truth that the wisdom of ever admitting 
hearsay evidence as the basis for the conviction of crime 
may well be doubted. 

In adopting a system such as we have been consider- 
ing for the punishment of crime for a new country, the 



348 ADMINISTRATION OF CRIMINAL LAW 



first and most apt question which can be asked is, 
" How have these so-called guarantees of liberty of the 
defendant worked on the whole? " While in England, 
in which all these restrictions are still observed, crime 
is punished with as much severity and uniformity as 
the public weal demands, — and this although they have 
the trial by jury, although the defendant can not be 
compelled to testify, and although all the other rules of 
evidence to which I have referred have full application, 
— how is it in this country? I grieve for my country 
to say that the administration of the criminal law in all 
the States of the Union (there may be one or two ex- 
ceptions) is a disgrace to our civilization. We are 
now reaching an age when we can not plead youth, 
sparse civilization, newness of country, as a cause for 
laxity in the enforcement of law. 

What makes the difference between the administration 
of the criminal law in England and in this country? 
In the first place, while the jury has always been a sacred 
and untouched part of the tribunal constituted to try 
crimes in England, the judges upon the court have al- 
ways taken and maintained their part at common law in 
the trial of every defendant, and that part has been, 
first, the retention of complete control over the method 
by which counsel try the case, restraining them to the 
points at issue and preventing them from diverting the 
minds of the jury to inconsequential and irrelevant cir- 
cumstances and considerations ; and, second, the power 
to aid the jury by advising them how to consider the 
evidence and expressing an opinion upon the evidence, 
leaving, however, to the jury the ultimate decision. In 
this way the sophistical rhetoric and sentimental ap- 
peals of counsel are made to lose their misleading effect, 
and the jurors are brought to a sense of their responsi- 



ADMINISTRATION OF CRIMINAL LAW 349 



bility in deciding the actual issues of fact as to the 
guilt or innocence of the defendant upon the evidence 
before them. 

Another reason why English justice still maintains 
its reputation for certainty of punishment is the fact 
that there are no appeals allowed from the trial in the 
first court unless the judge presiding in the court shall 
deem certain questions of law of sufficient importance 
and doubt to reserve them to a court of crown cases 
reserved. When, therefore, after a long or short trial 
the defendant is convicted, the conviction is final in 
ninety-nine cases out of a hundred. 

A possible third reason is to be found in the ability 
of the English court to secure the best character of men 
in either a common or a special jury — men charged 
with the earnest responsibility for the enforcement of 
the law. 

How is it in our own country? We find that these 
constitutional limitations 'adopted centuries ago in ten- 
derness to the defendant and which have to some extent 
outlived their usefulness because the reasons for their 
adoption have ceased to be, have been elaborated in their 
scope and operation not only by the court but also by 
the legislatures, because thought to be in the interest of 
liberty. And this has made them greater obstacles in the 
conviction of the guilty. The institution of trial by 
jury has come to be regarded as a fetich to such an ex- 
tent that state legislatures have exalted the power of the 
jury and diminished the power of the court in the 
tribunal made up of both for the hearing of criminal 
cases. 

Although the judiciary of nearly all the states is 
now elective, legislatures have seemed to resent any in- 
tervention by the judge in the trial of the cause beyond 



350 ADMINISTRATION OF CRIMINAL LAW 



a very colorless and abstract statement of the law to be 
applied to the case. It is manifestly impossible for a 
judge to instruct a jury in the law well and possess it 
of the law as applied to the facts without discussing 
the facts in detail, and without commenting on them. 
But so jealous have legislatures become of the influence 
of the court upon the jury that it is now in most states 
made an error of law for the court to express his 
opinion upon the facts, although he leaves the ultimate 
decision of course to the jury. It frequently is the 
case that under the statute the judge .is required to 
write his charge and discuss the abstract principles ap- 
plicable in the case, and that then the counsel are per- 
mitted to discuss the law of the case in view of the 
judge's charge and apply the facts. The opportunity 
which this gives the counsel to pervert the law, and 
the wide scope which the system in restricting the judge 
gives to the jury of following its own sweet will, of 
course doubles the opportunity for miscarriages of jus- 
tice. The function of the judge is limited to that of 
the moderator in a religious assembly. The law throws 
the reins on the back of the jury, and the verdict be- 
comes rather the vote of a town meeting than the sharp, 
clear decision of the tribunal of justice. The counsel 
for the defense, relying on the diminished power of the 
court, creates by dramatic art and by harping on the 
importance of unimportant details, a false atmosphere 
in the courtroom which the judge is powerless to dispel, 
and under the hypnotic influence of which, the counsel 
is able to lead the jurors to vote as jurors for a verdict 
which, after all the excitement of the trial has passed 
away, they are unable to support as men. 

Another cause already alluded to is the difficulty of 
securing jurors properly sensible of the duty which 



ADMINISTRATION OF CRIMINAL LAW 351 



they are summoned to perform. In the extreme tender- 
ness the state legislatures exhibit toward persons ac- 
cused as criminals and especially as murderers, they 
allow peremptory challenges to the defendant far in ex- 
cess of those allowed to the state. In my own state of 
Ohio for a long time, the law was that the state was 
allowed two peremptory challenges and the defendant 
twenty-three in capital cases. This very great dis- 
crepancy between the two sides of the case allowed the 
defendant's counsel to eliminate from all panels every 
man of force and character and standing in the com- 
munity, and to assemble a collection in the jury box of 
nondescripts of no character, weak and amenable to 
every breeze of emotion, however maudlin or irrelevant 
to the issue. 

I do not think that the members of the Bar can 
escape the responsibility for the demoralizing tendency 
of the legislatures to wrest from the judges in the 
criminal procedure the conserving power which they 
ought to retain and which they hacj at common law, and 
to exalt the jury's power beyond anything which is 
wise or prudent, and to extend to the defendant the 
opportunity to reject all good men from the jury and 
to select the weak, the unintelligent and the irrespon- 
sible. The perversions of justice in my own city of 
Cincinnati and state of Ohio in 1884 led to the appoint- 
ment of a committee of the Bar to visit the legislature 
to see whether it was not possible to rid our criminal 
code of procedure of those features which placecl)the 
prosecution at great disadvantage in the trial of capi- 
tal cases. The indignation of the public had led to a 
mob and to the burning of our courthouse, and it was 
thought that the time had come for some more active 
members of the community to organize and see if reform 



352 ADMINISTRATION OF CRIMINAL LAW 



could not be effected. I had the honor of being one of 
those who waited upon the judiciary committee of the 
Ohio legislature and preferred the request, that the 
twenty-three challenges allowed to the defendant be re- 
duced to twelve, and that the state be allowed a similar 
number; but we found that there were upon that com- 
mittee lawyers a substantial part of whose practice 
consisted in acting as counsel for the defendants in im- 
portant criminal trials. When I protested that twenty- 
three challenges was an outrageous number, the chair- 
man of the committee leaned back with the remark, 
" Many a time have I seen when I would have given all 
my fee to have had twenty-four challenges for the de- 
fendant." I cite this instance because I believe that the 
unjust disposition to curtail the power of judges, to 
exalt the power of the jury, to subject them to influ- 
ences that ought not to control them, and to give 
opportunity to the defendant's counsel to manipulate 
the selection of juries by the use of peremptory chal- 
lenges, is due more or less to the intervention of some 
members of the bar whose practice is more or less bene- 
ficially affected, as they conceive, by these obstacles to 
the course of justice. 

The third reason for the distinction between the en- 
forcement of law in England and in this country is to 
be found in the right of appeal which is given in every 
criminal case, and in many cases the appeal is to two 
courts. The code of evidence with its complicated 
rules, the technical statutory limitations supposed to be 
in favor of the defendant, are all used as a trap to catch 
the trial court in some error, however technical, upon 
which in appellate proceedings a reversal of the judg- 
ment of the court below may be asked. The rule which 
obtains throughout this country is that any error, how- 



ADMINISTRATION OF CRIMINAL LAW 353 



ever small, which it is impossible to show affirmatively 
did not prejudice the defendant, must lead to reversal 
of the judgment. The same disposition on the part 
of the courts to think that every provision of every 
rule of law in favor of the defendant is one to be strictly 
enforced, and even widened in its effect in the interest 
of the liberty of the citizen, has led courts of appeal to a 
degree of refinement in upholding technicalities in favor 



of defendants, and in reversing convictions, that renders 
one who has had practical knowledge of the trial of 
criminal cases most impatient. 

In a case carried on error to the Supreme Court of 
the United States, the point was raised for the first time 
in the Supreme Court that the record did not show an 
arraignment of the defendant and a plea of not 
guilty, and on this ground the court, three judges dis- 
senting, reversed the case. There was not a well- 
founded doubt in that case that the defendant was ar- 
raigned and pleaded not guilty. The perusal of the 
record raised this as a presumption of fact and the 
judgment was reversed, although there was not a pre- 
tense that the defendant had suffered any injury by 
reason of the alleged defect of the character in question. 
When a court of highest authority in this country thus 
interposes a bare technicality between a defendant and 
his just conviction, it is not too much to charge some 
of the laxity in our administration of the criminal law 
to a proneness on the part of courts of last resort to 
find error and to reverse judgments of conviction. 

And now, what has been the result in this country? 
Criminal statistics are exceedingly difficult to obtain. 
The number of homicides one can note from the daily 
newspapers, the number of lynchings and the number 
of executions, but the number of indictments, trials, con- 



354 ADMINISTRATION OF CRIMINAL LAW 



victions, acquittals or mistrials it is hard to find. Since 
1885 in the L^nited States there have been 131,951 mur- 
ders and homicides, and there have been 2286 execu- 
tions. In 1885 the number of murders was 1808. In 
1904 it had increased to 8482. The number of execu- 
tions in 1885 was 108. In 1904 it was 116. This 
startling increase in the number of murders and homi- 
cides as compared with the number of executions tells 
the story. As murder is on the increase, so are all 
offenses of the felony class, and there can be no doubt 
that they will continue to increase unless the criminal 
laws are enforced with more certainty, more uniformity, 
more severity than they now are. 

Certainly the result of the American criminal pro- 
cedure as distinguished from the English criminal 
procedure does not encourage us to think that it would 
be wise to introduce into the Philippine Islands a system 
of jury trial which now prevails in most of the States, 
especially under the restrictions of the power of the 
court which we find as we go west in this country. The 
cure for this growing cancer in the body politic is more 
practical and more available than most public evils be- 
cause it may be found in statutory amendments. If 
laws could be passed either abolishing the right of crimi- 
nal appeal and leaving to the pardoning power, as it is 
in England, the correction of judicial wrong, or in- 
stead of that, if appeals must be allowed, then if a pro- 
vision of law could be enacted by which no judgment 
of the court below should be reversed except for an error 
which the court, after reading the entire evidence, can 
affirmatively say would have led to a different verdict, 
ninety-nine reversals out of one hundred under the pres- 
ent system would be avoided. 

Second, if the power of the court by statute to ad- 



ADMINISTRATION OF CRIMINAL LAW 355 



vise the jury, to comment and express its opinion to the 
jury upon facts in every criminal case, could be restored, 
and if the state and the defendant were both deprived 
of peremptory challenges in the selection of a jury, 25 
per cent, of those trials which are now miscarriages of 
justice would result in the conviction of the guilty de- 
fendant, and that which has become a mere game in 
which the defendant's counsel play with loaded dice, 
would resume its office of a serious judicial investigation 
into the guilt or innocence of the defendant. I pre- 
sume it is useless to expect that courts will turn from 
their present tendency to amplify technicalities in be- 
half of defendants until legislatures shall initiate the 
change by the broad limitation already suggested upon 
the power of the court to reverse the judgment of the 
court below. Our country is disgusted by the number 
of lynchings that occur both in the North and in the 
South, and excuses are sought for the horrid and fiend- 
ish cruelties perpetrated by mobs in such cases in some 
other cause than the delays of justice. Instances are cited 
of where the mob has executed men whom they had every 
reason to believe were about to be justly punished under 
the law, to show that an improvement in the criminal 
procedure would not prevent lynchings. But every 
man of affairs who has studied the subject at all knows 
that if men who commit crime were promptly arrested 
and convicted, there would be no mob for the purpose 
of lynching. A mob, after it has organized, loses all 
conscience and can not be controlled, but it is the delays 
of justice that lead to its organization. Nothing but 
a radical improvement in our administration of criminal 
law will prevent the growth in the number of lynchings 
in the United States that bring the blush of shame to 
every lover of his country. 



mm Mmm 



I 
■I 



i 



m 



sen 



RE 



Mi 



